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AN    EXPOSITION 


OP  TH8 


PMCIPLES  OF  PLEADffiG 


UNDER    THE 


CODES  OF  CIVIL  PROCEDURE. 


By  GEORGE  L.  PHILLIPS,  LL.  D. 


CHICAGO : 
CALLAGHAN  AND  COMPANY, 

1896. 


CoPYRiaHT,  1896, 

BY 

GEORGE  L.  PHILLIPS. 


T 

P  f43Zc 


PREFACE. 


The  plan  and  purpose  of  this  book  are  stated  in  the 
introduction.  I  shall  here  state  the  reasons  for  its  prepara- 
tion and  publication. 

My  study  of  procedure,  and  my  experience,  at  the  Bar 
and  upon  the  Bench,  have  satisfied  me  that  a  complete  expo- 
sition, analytic  and  synthetic,  in  brief  and  convenient  com- 
pass, of  the  basis,  the  philosophy,  and  the  application,  of  the 
principles  of  pleading  under  the  Reformed  American  Pro- 
cedure, is  a  desideratum  in  the  literature  of  the  law.  The 
science  of  pleading  has  been  neglected  in  legal  literature,  in 
legal  instruction,  and  in  the  practice.  Its  neglect  in  the 
schools,  and  in  the  practice,  is  largely  due  to  the  want  of  a  well- 
adapted  text-book.  The  result  is,  that  young  men,  upon 
their  entrance  into  the  profession,  have  not  learned,  and  do 
not  understand,  the  principles  upon  which  the  substantive 
law  is  to  be  applied  to  operative  facts  ;  and  in  practice,  the 
tendency  has  been  to  follow  distinct  provisions  of  the  codes, 
literally,  rather  than  to  interpret  and  apply  them  as  parts  of 
an  entire  and  scientific  system. 

The  over-fullness  and  prolixity  of  pleadings  under  the 
codes  is  proverbial ;  it  is  a  needless  hindrance  in  judicial 
procedure,  and  is  as  reprehensible  as  it  is  needless.  Exces- 
sive statement  in  pleading  comes  from  conscious  uncertainty 
as  to  what  is  requisite,  and  what  is  sufficient.  The  ideal 
code  pleading  is  brief  and  simple  ;  but  its  brevity  and  sim- 
plicity come  only  from  adherence  to  the  scientific  principles 
of  the  system.  This  needless  fullness  and  prolixity  can 
be  avoided,  and  this  characteristic  simplicity,  terseness,  and 
brevity  can  be  secured,  only  by  an  intelligent  understanding 
of  the  true  philosophy  of  the  new  procedure. 


lU 


735726 


IV 


PREFACE. 


The  common-law  system  of  pleading,  in  its  finished  state, 
was  regarded  as  a  marvel  of  inventive  genius,  a  masterpiece 
of  subtle  refinement,  and  a  model  of  logical  exactness.  It 
held  high  rank  as  a  means  of  intellectual  and  legal  discipline  ; 
it  was  a  leading  topic  in  legal  education  ;  and  mastery  of 
this  legal  technique  was  a  mark  of  sound  and  thorough 
training.  Not  so  with  the  reformed  system.  It  is  generally 
regarded  as  wanting  in  educational  value ;  it  has  low  rank 
in  the  curricula  of  our  law  schools  ;  and  thorough  mastery 
of  its  principles  is  exceptional,  even  among  lawyers  of  learn- 
ing and  experience.  The  truth  is,  however,  that  the  reformed 
system  rests  upon  broad  and  rational  principles ;  that  it  is 
thoroughly  scientific  ;  that  its  study  is  highly  instructive  and 
disciplinary ;  and  that  thorough  mastery  of  it  by  the  pro- 
fession would  expedite  procedure,  would  elevate  and  dignify 
the  practice,  and  would  foster  the  exercise  of  care  and  pre- 
cision in  the  administration  of  justice. 

The  profession  has  been  amply  provided  with  books  of 
forms  and  precedents.  These  are  helpful  in  their  place,  but 
they  are  too  often  followed  without  intelligent  regard  to  the 
principles  upon  which  the  action  or  the  defense  should  be 
placed.  General  forms  may  suggest  matters  for  considera- 
tion, an  order  of  statement,  and  modes  of  expression  ;  they 
can  seldom  be  exact  models  in  a  particular  case ;  they  do 
not  teach  the  science  of  pleading,  nor  do  they  fortify  the 
pleader  for  the  new  and  ever-varying  conditions  that  must 
at  times  confront  him.  A  pleader  should  be  able  to  separate 
operative  facts  from  probative  facts  ;  to  determine  from  the 
operative  facts  the  legal  nature  of  the  right  involved,  and  of 
the  injury  done  or  threatened ;  to  distinguish  between  what 
is  essential  and  what  is  superfluous  in  the  statement  of  such 
right  and  the  invasion  thereof ;  to  determine  the  kind  of 
remedy  most  available,  and  the  persons  to  be  made  parties. 
He  should  not  only  know  what  is  requisite,  and  what  is 
sufiicient ;  he  should  know  why  it  is  so,  and  why,  upon 
principle,  it  should  be  so.  A  pleader  thus  fortified  may  well 
dispense  with  forms  and  precedents,  and  he  may  safely  make 
them  subservient  in  the  statement  of  a  right  of  action  or  a 
defense. 


PREFACE.  y 

The  liberality  of  our  courts  in  allowing  amendments  of 
pleadings  has  done  much  to  cultivate  indifference  both  as  to 
the  pleadings  in  a  cause,  and  as  to  the  science  of  pleading. 
This  indulgence  of  the  courts  makes  inefficient  pleaders ;  it 
prolongs  litigation,  and  loads  our  system  of  judicial  alterca- 
tion with  the  odium  of  a  delay  that  is  really  caused  by 
departure  from  its  principles. 

The  new  procedure  has  dispensed  with  authoritative 
forms  and  technical  language,  and  requires  each  case  to  pro- 
ceed upon  a  plain  statement  of  its  operative  facts,  made  in 
"ordinary  and  concise  language."  Some  have  mistaken 
this  for  a  relaxation  of  care,  method,  and  skill  in  pleading. 
And  if  we  are  to  judge  from  the  files  of  our  courts,  the 
notion  obtains  that  the  requirements  of  the  new  procedure 
may  be  satisfied  by  a  rambling  narration  of  evidential  facts 
and  legal  conclusions,  constructed  without  regard  to  per- 
spicuity, to  sentential  structure,  the  collocation  of  phrases, 
or  the  sequence  of  ideas.  There  could  hardly  be  a  greater 
mistake.  It  has  led  to  much  vagueness  and  uncertainty ; 
it  has  caused  the  courts  much  needless  labor,  litigants  much 
needless  expense,  has  prolonged  litigation,  and  has  some- 
times occasioned  a  miscarriage  of  justice. 

Analytical  Jurisprudence — the  scientific  exposition  of 
the  nature  and  sources  of  rights  and  of  law,  and  of  the 
means  whereby  the  law  effects  the  conservation  of  rights — 
has  made  material  progress  in  recent  times,  and  is  carrying 
its  scientific  generalizations  into  the  various  fields  of  positive 
law,  and  is  furnishing  bases  for  a  more  orderly  and  system- 
atic exposition  of  principles  than  has  heretofore  been  pos- 
sible. In  no  department  is  such  help  more  needed  or  more 
available  than  in  an  exposition  of  the  principles  of  the 
reformed  system  of  pleading  ;  yet  there  has  been  no  attempt 
to  make  this  advance  in  jurisprudence  subservient  in  a 
methodical  and  scientific  treatment  of  pleading. 

These  considerations  have  induced  me  to  attempt  a 
scientific  exposition,  in  brief  and  compendious  form,  of  the 
basis,  the  philosophy,  and  the  application,  of  the  principles 
of  pleading,  old  and  new,  embodied  in,  or  contributory  to, 
what  is  commonly  called  "  Code  Pleading." 


VI 


PREFACE. 


To  gather  from  the  mass  of  enactments  and  decisions  the 
established  principles  of  pleading,  and  to  distribute  them  in 
clear  synthetic  order  ;  to  trace  the  origin  and  development  of 
these  principles  ;  to  illustrate  their  use  in  the  application  of 
substantive  law  to  operative  facts ;  and  to  discover  the 
philosophy  of  this  procedure, — is  a  work  as  formidable  as  it 
is  needful.  I  doubt  not  I  have  come  short  of  its  full  accom- 
plishment ;  but  I  indulge  the  hope  that,  in  some  degree,  my 
labor  may  tend  to  restore  the  topic  to  its  proper  place  as  an 
educational  branch  of  the  law ;  that  it  may  help  the  student 
to  an  intelligent  and  comprehensive  grasp  of  the  subject ; 
that  it  may  tend  to  ground  the  pleader  upon  reason  and 
principle,  instead  of  dogma  and  precedent ;  and  that  it  may 
contribute  to  accuracy  and  dispatch  in  judicial  procedure. 

Geokgb  L.  Phillips. 
Cleveland,  April,  1896. 


CONTENTS. 

INTRODUCTION. 

PART  I. 

PHILOSOPHY  OF  PLEADING. 

CHAPTER  I. 

sBcnas 
A  General  View  op  Pi^ading 7 

CHAPTER  II. 

Private  Rights  and  Duties 14 

1.  Of  the  Nature  of  Private  Rights 14 

2.  Classification  of  Private  Rights 18 

CHAPTER  III. 
Correlation  op  Facts  and  Rights 21 

CHAPTER  IV. 
Of  Reliep  by  Civil  Action 23 

CHAPTER  V. 
Op  the  Cause  op  Action 29 

CHAPTER  VI. 
Of  the  Issue 34 

PART  II. 

HISTORY  OF  PLEADING. 

CHAPTER  VII. 

Pbocedure  Undeb  the  Roman  Civil  Law 40 

vii 


yiii  CONTENTS. 

CHAPTER  VIII. 

SBonoir 

GENBaiAii  View  of  Common-law  Peoceduke 46 

CHAPTER  IX. 

General  Divisions  of  Pleading  at  Common  Law 51 

1.  Of  the  Earlier  Forms 51 

2.  Of  the  Declaration 56 

3.  Of  Pleas— Dilatory 58 

4.  Of  Pleas— By  Way  of  Traverse 61 

5.  Of  Pleas — In  Confession  and  Avoidance 69 

6.  Of  Pleadings  Subsequent  to  the  Plea 76 

7.  Of  Demurrers 79 


CHAPTER  X. 

Division  of  Actions  at  Common  Law 87 

1.  Real  and  Mixed  Actions 87 

2.  Actions  in  Form  Ex  Contractu 93 

3.  Actions  in  Form  Ex  Delicto 100 

4.  General  View  of  Personal  Actions 108 

5.  Additional  Remedial  Forms 113 


CHAPTER  XI. 

The  Principal  Rules  of  Pleading  at  Common  Law 115 

1.  Rules  for  the  Production  of  an  Issue 116 

2.  Rules  for  Secvu-ing  Materiality  in  the  Issue 120 

3.  Riiles  for  Securing  Singleness  in  the  Issue 122 

4.  Rules  for  Securing  Certainty  in  the  Issue 126 

5.  Rules  to  Prevent  Obscurity  and  Confusion 133 


CHAPTER  XII. 
Nature  and  Extent  op  Equity  Jurisdiction 137 

CHAPTER  XIII. 
Conduct  of  a  Suit  in  Equity , 142 

CHAPTER  XIV. 
The  Pleadings  IN  Equity 148 

CHAPTER  XV. 
The  Reformed  American  Procedure 159 


CONTENTS.  ix 

PART  III. 

THE  ORDERLY  PARTS  OF  PLEADING. 

(Regular  Parts.) 
CHAPTER  XVI. 

SECmON 

The  Complaint 169 

1.  OftheTitle 170 

2.  Of  the  Statement 177 

3.  Of  the  Prayer  for  Relief 218 

4.  Of  the  Verification 224 

CHAPTER  XVII. 

The  Answer 227 

1.  Of  Denials 229 

2.  Of  New  Matter 235 

CHAPTER  XVIII. 
The  Reply 267 


(Irregular  Parts.) 

CHAPTER  XIX. 

Motions 277 

1.  To  Strike  from  the  Files 278 

2.  To  Strike  out  Redundant  Matter 280 

3.  To  Make  Definite 283 

4.  To  Separately  State  and  Number 285 

5.  Waiver  of  Formal  Defects 287 

CHAPTER  XX. 

Demurrers.: 289 

1.  General 291 

2.  Special 296 

CHAPTER  XXI. 

Amendments 309 

1.  OfRight 311 

2.  By  Leave  Obtained 312 

8.  Supplemental  Pleadings 317 


jj  CONTENTS. 

PART  IV. 

GENERAL  RULES  OF  STATEMENT. 
CHAPTER  XXII. 

SECnOM 

Rules  Relating  to  Matters  of  Substance , 321 

1.  Of  Matters  to  be  Stated 322 

3.  Of  Matters  not  to  be  Stated 341 

CHAPTER  XXIII. 

Rules  Relating  to  Matters  of  Form 350 

1.  The  Construction  of  Pleadings 351 

2.  The  Manner  of  Statement 355 

CHAPTER  XXIV. 

Rules  Relating  to  the  Proofs 379 

1.  What  May  be  Proved  Under  a  Denial 381 

2.  Defensive  Facts  that  Must  be  AUeged,  in  Order  to  be 

Proved 384 


PART  V. 

APPLICATION  OF  PRINCIPLES. 

CHAPTER  XXV. 

Discovering  a  Right  of  Action 388 

1.  Actions  Founded  on  Rights  and  Delicts 388 

2.  The  Substantive  Law  that  is  Applicable 399 

3.  Proximate  and  Remote  Causes  of  Injury 405 

4.  Privity  as  an  Element  of  Rights  of  Action 415 

5.  Damage  as  an  Element  of  Rights  of  Action 423 

6.  Divestitive  and  Exculpatory  Facts 430 

7.  Distinguishing  Rights  of  Action 438 

CHAPTER  XXVI. 

The  Parties  to  an  Action 449 

1.  Of  Parties  Plaintiff 450 

2.  Of  Parties  Defendant 453 

3.  Of  the  Joinder  of  Parties 455 


CONTENTS.  Xi 

CHAPTER  XXVII. 

The  Jurisdiction  of  the  Court 461 

CHAPTER  XXVIII. 

Actions  and  Defenses 471 

1.  Actions  for  Breach  of  Contract 472 

2.  Actions  for  Torts 490 

3.  Actions  for  Equitable  Relief 504 

CHAPTER  XXrX. 

OccASiONAii  Incidents  op  Procedure 511 


TABLE  OF  OASES. 


The  references  are  to  pages. 


A. 


Abadie  v.  Carrillo,  373. 
Abeles  v.  Cohen,  450. 
Abendroth  v.  Boardley,  183. 
Aberdeen  v.  Blackmar,  450. 
Acheson  v.  Miller,  91,  94. 
Acklen  v.  Acklen,  561. 
Adair  v.  New  River  Co.,  488,  489. 
Adams  v.  Blankenstein,  520. 
Adams  v.  Clutterbuck,  326. 
Adams  v.  Dale,  376. 
Adams  v.  HoUey,  311. 
Adams  v.  Sherrill,  378,  510. 
Adams  v.  Waggoner,  455. 
Adams  Exp.  Co.  v.  Darnell,  390. 
Adams  Exp.  Co.  v.  Harris,  161. 
Addison  v.  Burt,  533. 
Adkins  v.  Hudson,  518. 
Agard  v.  Valencia,  538. 
Ahrend  v.  Odiorne,  323. 
Ains worth  v.  Bowen,  228. 
Akin  V.  Davis,  178,  190. 
Albrittin  v.  Huntsville,  336. 
Albro  V.  Lawson,  284. 
Alderman  v.  Finley,  336. 
Aldine  Mfg.  Co.  v.  Barnard,  440. 
Alexander  v.  Milwaukee,  366. 
Alexander  v.  Ry.  Co.,  421. 
Alger  V.  Johnson,  323. 
Allen  V.  Aguirre,  325. 
Allen  V.  Brown,  314. 
AUen  V.  Crofoot,  289 
Allen  V.  Miller,  314. 
Allen  V.  Murray,  508. 


Allen  V.  Patterson,  338,  373. 

Allen  V.  Richard,  323. 

Allen  V.  Shackelton,  228. 

AUen  V.  Smith,  339. 

AUen  V.  State,  154. 

AUis  V.  Leonard,  310,  211. 

Allison  V.  Nanson,  396. 

Alpers  V.  Schamel,  345. 

Alpin  V.  Morton,  198. 

Alston  V.  Wilson,  344. 

Alton  V.  Ry.  Co.,477. 

Amberger  v.  Marvin,  322. 

Am.  B.  H.  Co.  V.  Gurnee,  277. 

Ammerman  v.  Crosby,  157. 

Am.  Nat.  Bk.  v.  Wheelock,  373. 

Anderson  v.  Mayers,  295. 

Anderson  v.  Tyson,  534. 

Andr.  Co.  v.  Metcalf ,  440. 

Andreas  v.  Holcombe,  378. 

Andrews  v.  Alcorn,  195,  198,  279, 

377. 
Andrews  v.  Bond,  301. 
Andrews  v.  Herriot,  513. 
Andrews  v.  Jones,  325. 
Annapolis  Co.  v.  Gantt,  437. 
Ansley  v.  Green,  155. 
Anson  v.  Anson,  484. 
Anthony  v.  Slaid,  433. 
Archer  v.  Archer,  451. 
Archer  v.  Romaine,  381. 
Argall  V.  Pitts,  201. 
Arguello  v.  Edinger,  323. 
Armstrong  v.  Dalton,  329. 
Armstrong  v.  Warner,  234. 
Arnold  v.  Potter,  430. 

xiii 


XIV 


TABLE  OF  CASES. 


The  references  are  topages. 


Arthur  v.  Brooks,  359. 
Ashby  V.  White,  25,  406. 
Ashley  v.  Marshall,  230. 
Ashley  v.  Harrison,  432. 
Aspindall  v.  Brown,  386. 
Atty.  General  v.  Foote,  336. 
Atwater  v.  Walker,  420. 
Auchmuty  v.  Ham,  179,  180. 
Audubon  v.  Excelsior  Ins.  Co.,  516. 
Ault  V.  Zehering,  381. 
Aurora  City  v.  West,  289. 
Austin  V.  Imus,  421. 
Avory  v.  Mead,  391. 
Ayer  v.  Ashmead,  485. 
Ayers  v.  Campbell,  293. 
Ayre  v.  Craven,  526. 
Axtel  V.  Chase,  544. 

B. 

Babbage  v.  Church,  210. 
Babcock  v.  Meek,  321. 
Baby  v.  Dubois,  337. 
Bachelder  v.  Brown,  481. 
Bailey  v.  Gas  Co.,  425. 
Bailey  v.  Irwin,  322. 
Bailey  v.  Lee,  542. 
Bailey  v.  Ry.  Co.,  459. 
Bailey  v.  Swain,  391,  524. 
Baines  v.  W.  C.  L.  Co.,  540. 
Baird  v.  Clark,  362,  363. 
Baker  v.  Berry,  376. 
Baker  v.  Bolton,  408. 
Baker  v.  Hawkins,  285. 
Baker  v,  HoUobaugh,  325.     , 
Baker  v.  Kinsey,  234,  235. 
Baker  v.  Kistler,  364. 
Baker  v.  Ludlam,  353,  354. 
Baker  v.  Riley,  490. 
Baldwin  v.  Canfield,  284. 
Baldwin  v.  Nav.  Co.,  300. 
Baldwin  v.  W.  R.  R.  Corp.,  448. 
Bales  V.  Scott,  523,  524. 
Ball  V.  Fulton,  353,  372. 
Balue  V.  Taylor,  353. 
Bank  v.  AuU,  444. 
Bank  v.  Bassett,  300. 


Bank  v.  Bd.  of  Aid.,  365. 

Bank  v.  Bush,  212. 

Bank  V.  City,  183. 

Bank  v.  Closson,  244,  246. 

Bank  v.  East  Chester,  303. 

Bank  v.  Fuqua,  386. 

Bank  v.  Gaines,  186. 

Bank  v.  Hart,  100. 

Bank  v.  Hemingray,  234. 

Bank  v.  Hendi'ickson,  256,267,  289, 

359,  387. 
Bank  v.  Hoeber,  374. 
Bank  v.  Hogan,  363. 
Bank  V.  Ins.  Co.,  315. 
Bank  v.  Jenkins,  557. 
Bank  v.  Kinner,  321, 
Bank  v.  Kuhnle,  155. 
Bank  v.  Lockwood,  289. 
Bank  v.  Milwaukee,  etc.,  Mills,  457. 
Bank  v.  Newton,  178,  192,  194. 
Bank  v.  O'Rorke,  365. 
Bank  V.  Ry.  Co.,  188. 
Bank  v.  Reed,  204. 
Bank  v.  Richards,  255. 
Bank  v.  Shaw,  203. 

Bank  v.  Sherman,  270. 

Bank  v.  Street,  293. 

Bank  v.  Thompson,  542. 

Bank  v.  Treat,  162. 

Bank  v.  Webb,  186,  189. 

Bank  v.  Weyand,  226. 

Banning  v.  Bradford,  542. 

Bap.  Ch.  V.  Ry.  Co.,  410. 

Barber  v.  Reynolds,  295. 

Barbour  v.  Bank,  234. 

Barholt  v.  Wright,  455,  535. 

Barker  v.  Hoff ,  505. 

Barker  v.  Walters,  489. 

Barkman  t.  Hopkins,  517. 

Barlow  v.  Burns,  182. 

Barlow  v.  Scott,  200. 

Barnard  v.  Sherley,  250. 

Barnes  v.  Beloit,  487. 

Barnes  v.  Hathorn,  446. 

Barnes  V.  Ins.  Co.,  299. 

Barnett  v.  Meyer,  300,  332. 

Barney  v.  Steamboat  Co.,  521, 


TABLE  OF  CASES. 


XV 


433. 


179. 


Barrv.  O'Donnell,  333. 
Ban-  V.  Shaw,  178. 
Barrett  v.  Crane,  163. 
Barry  v.  Carter,  181,  338. 
Barry  v.  Coombe,  334. 
Bartges  v.  O'Neil,  378,  474, 
Barthol  v.  Blakin,  341. 
Bartlett  v.  Farrington,  330. 
Bartlett  v.  Judd,  338. 
Barton  v.  Agricul.  Soc. 
Bass  V.  Comstock,  886. 
BasseU  v.  Elmore,  536. 
Bassett  v.  Warner,  386. 
Bate  V.  Burr,  155. 
Bateman  v.  St.  Ry.  Co. 
Bates  V.  Rosekrans,  340. 
Bateson  v.  Clark,  367. 
Battel  V.  Matol,  334. 
Bauer  V.  Wagner,  317. 
Bayne  v.  Morris,  416. 
Beach  v.  Bank,  399. 
Beach  v.  Fulton  Bank,  333. 
Beach  v.  King,  158,  340,  342. 
Beal  V.  Brown,  335. 
Beale  v.  Hayes,  374. 
Bean  v.  Green,  559. 
Bear  v.  Knowles,  369. 
Beard  v.  Beard,  419. 
Bearss  v.  Montgomery,  356. 
Beattie  v.  Lett,  314. 
Beau  voir  v.  Owen,  330. 
Beck  V.  Allison,  399,  300. 
Becker  v.  Sweetzer,  315. 
Becker  v. Washington,  341. 
Beckett  v.  Lawrence,  397. 
Beckwith  v.  MoUohan,  183,  183, 
Bedford  v.  Barnes,  386. 
Beebev.  Marvin,  366. 
Beecher  v.  Conradt,  316. 
Beers  v.  Kuehn,  187,  508. 
Beers  v.  Shannon,  154. 
BeU  V.  Brown,  344. 
Bell  V.  Ellis,  473. 
Bell  V.  Hausley,  455. 
Bell  V.  Lesbini,  333. 
Bell  V.  McCoUoch,  516. 
Bellamy  v,  Burch,  585. 


The  references  are  to  pages. 

j  Bellows  V.  Stone,  544. 
Bendernagle  v.  Cocks,  468. 
Benedict  v.  Seymour,  531. 
Benjamin  v.  Delahay,  376. 
Bennet  v.  Hood,  465. 
Bennett  v.  Button,  531. 
Bennett  v.  Preston,  884. 
Bennett  v.  Vade,  185. 
Bennett  v.  Whitney,  153,  154. 
Bennett  v.  Williams,  546. 
Benson  v.  Stein,  380,  855. 
Bently  v.  Dorcas,  308,  365. 
Benton  v.  Pratt,  437. 
Berg  V.  Milwaukee,  431. 
Berkshire  v.  Schultz,  878. 
Berry  v.  Carter,  387. 
Bethlehem  Bor.v.  Ins.  Co.,  440, 
Berthold  v.  Fox,  584. 
Betts  v.  Bagley,  380. 
Biays  v.  Roberts,  380. 
Bidwellv.  Ins.  Co.,  191. 
Bidwell  V.  Madison,  333. 
Billigheimer  v.  State,  334. 
Billings  V.  Waller,  539. 
Billingslea  v.  Ward,  333. 
Birch  v.  Benton,  536. 
Birchell  v.  Neaster,  333. 
Bird  v.  Comm.,  334. 
Bird  V.  Cotton,  159. 
Bird  V.  Mayer,  383. 
Bird  V.  Munroe,  335. 
Birdseye  v.  Smith,  186. 
Bishop  V.  Bishop,  384. 
Bishop  V.  Price,  337. 
Bitz  V.  Meyer,  530. 
Blachford  v.  Dod,  531. 
Black  V.  Chesser,  503. 
Black  V.  Richards,  844. 
Black  V.  Thompson,  315. 
Blackeley  v.  LeDuc,  371. 
Blackwell  v.  Montgomery,  157. 
Blair  v.  Claxton,  330. 
Blair  v.  Ry.  Co.,  178. 
Blair  v.  Rigley,  406. 
Blair  v.  Shelby,  etc.,  Assn.,  541, 
Blake  v.  Burley,  383. 
Blake  v.  Eldred,  311,  865. 


XVI 


TABLE  OF  CASES. 


The  references  are  to  pages. 


Blake  v.  Minkner,  295. 

Blake  v.  Sanderson,  444. 

Blake  v.  Tucker,  154. 

Blakemore  v.  Ry.  Co.,  424. 

Blakeslee  v.  Hughes,  527. 

Blanck  v.  Little,  322. 

Blasdell  v.  State,  333. 

Bledsoe  v.  Simms,  392. 

Block  V.  Ebner,  227. 

Bloomfield  v.  Ketcham,  547. 

Blossom  V.  Ball,  376. 

Blossom  V.  Barrett,  271. 

Blount  V.  Rick,  252. 

Bd.  Comrs.  v.  Burford,  336. 

Board  of  Comrs.  v.  Huffman,  215. 

Board  Ed.  v.  Hackmann,  292. 

Boaz  V.  Fate,  528. 

Boeckler  v.  Ry.  Co.,  182,  194. 

Bogardus  v.  Trial,  376. 

Bogart  V.  Ry.  Co.,  535. 

Bohn  V.  Devlin,  501. 

Bolen  V.  State,  559. 

Boiling  V.  Munchus,  323. 

Bolton  V.  Cleveland,  336. 

Bond  V.  Corbett,  373. 

Bond  V.  Perkins,  337. 

Bond  V.  Wagner,  241. 

Bonham  v.  Craig,  322. 

Booth  V.  F.  &  M.  Nat.  Bk.,  382. 

Booth  V.  Mill  Co.,  447. 

Boots  V.  Canine,  374. 

Boreel  v.  Lawton,  230. 

Borradaile  v.  Brunton,  448. 

Bort  V.  Yaw,  179. 

Boston  V.  State,  337. 

Boston  Ice  Co.  v.  Potter,  443. 

Boston  &  S.  G.  Co.  v.  Boston,  413. 

Bostwick  V.  Meuck,  302. 

Bottorff  V.  Wise,  515. 

Bouchaud  v.  Dias,  515. 

Boulton  V.  Jones,  443. 

Bourland  v.  Nixon,  283. 

Bouslog  V.  Garrett,  505. 

Bouton  V.  Orr,  284. 

Bovy's  Case,  346. 

Bo  wen  v.  Aubrey,  264. 

Bowen  v.  Emerson,  373. 


Bowen  v.  Newell,  335,  422. 
Bowie  V.  Minter,  154. 
Bowles  V.  Doble,  297. 
Bowman  v.  Earle,  301. 
Bowman  v.  Holladay,  474,  508. 
Bowman  v.  Sheldon,  263. 
BoAvne  v.  Loy,  284. 
Boyd  V.  Dowie,  415. 
Boyd  V.  Hurlbut,  330. 
Boyer  v.  Clark,  233. 
Boyles  v.  Hoyt,  203. 
Bracket  v.  Wilkinson,  348. 
Bradbury  v.  Cronise,  363. 
Bradley  v.  Aldrich,  201. 
Bradley  v.  Fuller,  405,  423. 
Bradley  v.  Parkhurst,  542. 
Bradner  v.  Faulkner,  397,  532. 
Brady  v.  Brennan,  233. 
Brady  v.  Murphy,  518. 
Bragg  V.  Bickford,  203. 
Brainard  v.  Stilphim,  154. 
Brainerd  v.  Bertram,  488. 
Brake  v.  Payne,  278. 
Brakefield  v.  Anderson,  325. 
Branch  v.  Wiseman,  524. 
Brandt  v.  Albers,  381. 
Bray  v.  Marshall,  398. 
Brazil  v.  Isham,  382. 
Breckinridge  v.  Am.  Cent.  Ins.  Co., 

363. 
Brehen  v.  O'DonneU,  289. 
Brennan  v.  Ford,  281. 
Brett  V.  Univ.  Soc,  393. 
Brewer  v.  Dyer,  441. 
Brewer  v.  Maurer,  441. 
Brewster  v.  Ry.  Co. ,  472. 
Brickett  v.  Davis,  528. 
Bridge  Co.  v.  Mayer,  489. 
Bridges  v.  Paige,  393. 
Briggs  V.  Whipple,  336. 
Brigham  v.  Carlisle,  322. 
Bright  V.  Currie,  374. 
Bringham  v.  Leighty,  347. 
Brinkman  v.  Hunter,  186. 
Britton  v.  Hunt,  541. 
Broad  St.  Hotel  Co.  v.  Weaver,  334. 
Brock  V.  Bateman,  297. 


TABLE  OF  CASES. 


xvu 


Brock  V.  Hidy,  537. 

Brock  V.  KBOwer,  322. 

Brocklen  v.  Smeallie,  508. 

Broder  v.  Ctonklin,  323. 

Broderick  v.  James,  411. 

Bronson  v.  Ins.  Co.,  285. 

Brook  V.  Irvine,  289. 

Brooks  V.  Ancell,  198. 

Brown  v.  Bank,  255. 

Brown  v.  Barnes,  321. 

Brown  v.  Benight,  155. 

Brown  v.  Bd.  of  Ed.,  372. 

Brown  v.  Brooks,  431. 

Brown  v.  Buckingham,  229,  240. 

Brown  v.  Connelly,  531. 

Brown  v.  Eaton,  537. 

Brown  v.  Galena,  M.  &  S.  Co.,  290. 

Brown  v.  Harmon,  386. 

Brown  v.  Kendall,  404. 

Brown  v.  Kimmel,  506. 

Brown  v.  Lake,  467. 

Brown  v.  Leigh,  298,  299. 

Brown  v.  Martin,  281. 

Brown  v.  Min.  Co.,  295. 

Brown  v.  Mott,  547. 

Brown  v.  Perry,  373. 

Brown  v.  PhUlips,  339. 

Brown  v.  Ry.  Co.,  267. 

Brown  v.  Ryckman,  356. 

Brown  v.  The  G.  M.  &  S.  Co.,  351. 

Brown  v.  Treat,  473. 

Brown  v.  Tucker,  289. 

Brown  v.  Webber,  180. 

Brownell  v.  Flagler,  457. 

Brownfield  v.  Weicht,  500. 

Bruce  v.  Burr,  228. 

Bruck  V.  Tucker,  226,  391. 

Bruckman  v.  Taussig,  380. 

Brumagim  v.  Bradshaw,  337. 

Brunaugh  v.  Worley,  523. 

Brundage  v.  Briggs,  546. 

Brundage  v.  Miss.  Soc. ,  542. 

Brunsden  v.  Humphrey,  466. 

Brutton  v.  The  State,  333. 

Bryant  v.  Bryant,  265. 

Buchanan  v.  Comstock,  302. 

Buck  V.  Buck,  483. 


The  references  are  to  pages. 

Bucki  V.  Cone,  340. 

Buckingham  v.  Buckingham,  283. 

Buckingham  v.  McCracken,  553. 

Buckinghouse  v.  Gregg,  337. 

Buckley  v.  Buckley,  302. 

Buckner  v.  Davis,  376. 

Budd  V.  Hiler,  439. 

Budd  V.  Kramer,  367. 

Buddecke  v.  Ziegenhein,  500. 

Buehler  v.  Reed,  506. 

Buel  V.  Boughton,  440. 

Buel  v.  Ry,  Co.,  430. 

Buford  V.  N.  Y.  Life  Ins.  Co.,  315. 

Buhne  v.  Corbett,  245. 

Bldg.  Assn.  V.  Clark,  208,  256,  36& 

Bldg.  Assn.  V.  Childs,  539. 

Bulger  V.  Roche,  331. 

Bulkley  v.  Iron  Co.,  283. 

BurdeU  v.  Burdell,  302. 

Burdett  v.  Greer,  341. 

Burdette  v.  Corgan,  495. 

Burdick  v.  Cheadle,  425. 

Burdick  v.  Worrall,  534. 

Burhaus  v.  Squires,  198. 

Burke  v.  Water  Co.,  211. 

Burley  v.  Bank,  211. 

Bumes  v.  Crane,  280. 

Burnham  v.  Milwaukee,  385. 

Bums  V.  Ash  worth,  288. 

Bums  V.  People,  341. 

Burns  v.  Simpson,  375,  377. 

Bumside  v.  Grand  Trunk  Ry.  O0i>» 

353. 
Burr  v.  Beers,  441. 
Burrage  v.  Melson,  171. 
Burrows  v.  March,  etc.,  €ras  Co., 

■426. 
Burrows  v.  Miller,  284. 
Burt  V.  Brigham,  162. 
Burt  V.  Wilson,  323. 
Burtis  V.  Thompson,  416. 
Burton  v.  White,  376. 
Bush  V.  Prosser,  206. 
Bush  V.  Wick,  520. 
Butcher  v.  Bank,  157,  380. 
Butler  V.  Church,  204,  270. 
Butler  V.  Edgerton,  315. 


XVIU 


TABLE  OF  CASES. 


Butler  V.  Kent,  433. 
Butler  V.  Lawson,  271. 
Butler  V.  Mason,  172, 
Butler  V.  Paine,  297. 
Butler  V.  Robinson,  335. 
Butler  V.  Wentworth,  247. 
Buttemere  v.  Hayes,  322. 
Butterfield  v.  Hartshorn,  441. 
Button  V.  McCauley,  396. 
Byxbie  v.  Wood,  473,  481. 

c. 


CahiU  V.  Bigelow,  325. 

Caldwell  v.  Auger,  399. 
Caldwell  v.  Briggerman,  394. 
Calhoun  v.  Hallen,  211. 
Callahan  v.  Loughran,  351. 
Callison  v.  Little,  485. 
Calvin  v.  State,  292,  375,  377. 
Cameron  v.  Mount,  424,  436. 
Camp  V.  Wilson,  189. 
Campbell  v.  Cross,  082. 
Campbell  v.  Jones,  523. 
Campbell  v.  Nichols,  421. 
Campbell  v.  Perkins,  473. 
Campbell  v.  Routt,  240,  376. 
Canal  v.  Wright,  472. 
Canal  Co.  v.  Snow,  288. 
Canal  Co.  v.  Webb,  291. 
Cane  v.  Crafts,  382. 
Canefox  v.  Anderson,  478. 
Canfield  v.  Tobias.  347,  348. 
Cannon  v.  Alsbury,  520. 
Capuro  V.  Ins.  Co.,  221. 
Carey's  Appeal,  418. 
Carleton  v.  Bickford,  513. 
Carman  v.  Ry.  Co.,  459. 
Carmichael  v.  Argard,  299. 
Carnegie  v.  Morrison,  441. 
Carr  v.  Bosworth,  365. 
Carroll  v.  Minn.  Val.  Ry.  Co 
Carroll  v.  Paul,  373. 
Carroway  v.  Anderson,  321. 
Carry  v.  Company,  408. 
Carslake  v.  Mapledoran,  525. 
Carson  v.  Cook,  278. 


The  references  are  to  pages. 

Carter  v.  Mills,  490. 
Carter  v.  Towne,  429,  434. 
Carthy  v.  Garraghty,  195. 
Cary  v.  Wheeler,  271. 
Case  V.  Barber,  321. 
Case  V.  Mobile,  335. 
Casey  v.  Mann,  338. 
Cassady  v.  Scallen,  537. 
Castua  V.  Sumner,  314. 
Cate  V.  Oilman,  265. 
Cates  V.  McKinney,  171. 
Cathcart  v.  Peck,  264. 
Catlin  V.  Pedrick,  182,  198,  279. 
Cent.  Bk.  v.  Veasy,  517. 
Central  Mills  Co.  v.  Hart,  444. 
Chace  v.  Hinman,  450. 
Chace  v.  Traflford,  505. 
Challen  v.  Cincinnati,  553. 
Chamberlin  v.  Ry  Co.,  270. 
Chamberlin  v.  Scott,  473. 
Chambers  v.  Nicholson,  542. 
Champion  v.  Vincent,  407. 
Champlin  \.  Parish,  322. 
Chapman  v.  Chapman,  208. 
Chapman  v.  Robinson,  420, 
Chapman  v.  West,  538. 
Chase  v.  Dow,  420,  421. 
Cheever  v.  Wilson,  418,  419. 
Cheyney  v.  Arnold,  519. 
Cheyney  v.  Fisk.  341. 
Chickering  v.  Brooks,  322. 
Childs  V.  Childs,  484. 
Chilson  v.  Jennison,  523. 
Choen  v.  State,  154. 
Christmas  v.  Russell,  514. 
Christy  v.  Perkins.  302. 
Church  V.  Mumford.  473. 
Church  V.  Ry.  Co.,  173,  333. 
ChurchiU  v.  Hunt,  450,  451. 
Cincinnati  v.  Cameron,  304. 
Cin.,  etc.,  Co.  v.  Case,  554. 
457.    City  Bank  v.  Perkins,  314. 

City  of  Solomon  v.  Hughes,  337. 
Claflin  V.  Reese,  366. 
Claflin  V.  Taussig,  347. 
Clarence  v.  Marshall,  445. 
Clark  V.  Barnard,  24,  452,  453. 


TABLE  OF  CASES. 


XIX 


TTie  references  are  to  pages. 


Clark  V.  Chambers,  434. 

Clark  V.  Clark,  297. 

Clark  V.  Dales,  318. 

Clark  V.  Dillon,  351. 

Clark  V.  Goodwin,  511, 

Clark  V.  Locomotive  Works,  455. 

Clark  V.  Lovering,  280. 

Clark  V.  Rowling,  380. 

Clark  V.  Wise,  548. 

Clarke  v.  Huber,  398. 

Clary  v.  Marshall,  325. 

Clay  V.  Edgerton,  314,  353. 

Clay  Co.  V.  Simonson,  212. 

Claypool  V.  Jaqua,  250. 

Clegg  V.  Dearden,  471. 

Clements  v.  Moore,  416. 

demons  v.  Davis,  300. 

Clendennen  v.  Paulsel,  473. 

Cleveland  v.  Ry.  Co.,  427. 

Clink  v.  Thurston,  345,  395. 

Clive  V.  Beaumont,  199. 

Cloon  V.  Ins.  Co.,  271,  287. 

Clossen  v.  Staples,  530. 

Cloud  V.  Greasley,  323. 

Clough  V.  Hosford,  444. 

Coal  Co.  V.  Sanita  Assn.,  363. 

Coal  Co.  V.  Schaefer,  558. 

Cobb  V.  Lucas,  154. 

Cobb  V.  Ry.  Co.,  270. 

Coe  V.  Lindley,  183,  376. 

Coe  V.  Rankin,  450. 

Coffee  V.  Williams,  505. 

Coffin  V.  Secor,  330. 

Cogswell  V.  Murphy,  179. 

Cohn  V.  Husson,  252. 

Coit  V.  Skinner,  300,  332. 

Coit  V.  Starkweather,  154. 

Cole  V.  Reynolds,  488. 

Colegrove  v.  Ry.  Co.,  487. 

Coleman  v.  Bunce,  227. 

Coleman  v.  Hiler,  442. 

Coleman  v.  Whitney,  479. 

Coleman  v.  Wooley,  443. 

Coles  V.  Kelsey,  328,  330. 

Colglazier  v.   Colglazier,  322,  353, 

354. 
Collart  V.  Fisk,  366. 


College  V.  Cleveland,  454. 

Collins  V.  Rogers,  239. 

CoUisv.  Selden,  425. 

Collyer  v.  Collyer,  444. 

Colt  V.  Stewart,  234. 

Combs  V.  Watson,  172,  280,  338. 

Com.  Bank  v.  Pfeiffer,  354. 

Com.  V.  Donovan,  155. 

Com.  V.  Mehan,  155. 

Com.  V.  Stone,  155. 

Com.  V.  Todd,  237. 

Comrs.  V.  Plumb,  469. 

Conway  v.  Wharton,  345. 

Cook  V.  Chase,  287. 

Cook  V,  Cook,  526. 

Cook  V.  Dry  Dock  Co.,  425. 

Cook  V.  Litchfield,  384. 

Cook  V.  Soule,  327. 

Cook  V.  Smith,  359. 

Cook  V.  Warren,  510. 

Cooke  V.  Tallman,  336,  887. 

Cooper  V.  Ins.  Co. ,  544. 

Cooper  V.  Jackson,  220. 

Cooper  V.  Mcjunkin,  409. 

Cooper  V.  Reynolds,  492,  493. 

Cope  V.  Alden,  420. 

Corbin  v.  Knapp,  302. 

Cord  V.  Hirsch,  541. 

Cork  V.  Baker,  519. 

Comrs.  Canal  Fund  v.  Perry,  479. 

Commrs.,  etc.  v.  Huffman,  533. 

Comp.  Co.  V.  Ins.  Co.,  284. 

Comstock  V.  Hier,  439. 

Conaway  v.  Gore,  544. 

Conboy  v.  Iowa  City,  337. 

Conger  v.  Johnston,  218. 

Conger  v.  Parker,  238. 

Conkey  v.  Hopkins,  451. 

Conklin  v.  Barton,  284. 

Conn  V.  Rhodes,  202. 

Conner  v.  Bean,  450. 

Conner  v.  Comstock,  523. 

Connor  v.  Bd.  of  Ed.,  202. 

Conoughty  v.  Nichols,  366,  369. 

Conway  v.  Day,  561. 

Cornelius  v.  Kessel,  229. 

Cornwell  v.  Haight,  316. 


XX 


TABLE  OF  CASES. 


ITie  references  are  to  pages. 


Corry  v.  Campbell,  249,  346. 

Corry  v.  Gaynor,  201,  385. 

Cosby  V.  Powers,  157. 

Coster  V.  Mayor,  441. 

Cottle  V.   Cole,  221,  313,  314,  393, 

478. 
Counoss  V.  Meir,  212. 
County  of  St.  Charles  v.  Powell, 

329. 
Courson  v.  Courson,  470. 
Co  wart  V.  Perrine,  331. 
Cox  V.  Delmas,  551. 
Cox  V.  Esteb,  552. 
Cox  V.  Fenwick,  444. 
Cox  V.  Jordan,  252. 
Cox  V.  Joseph,  451. 
Cox  V.  Plough,  317. 
Cozine  v.  Graham,  323. 
Crabtree  v.  Banks,  231. 
Cracraft  v.  Cochran,  468. 
Cragin  v.  Lovell,  226. 
Craig  V.  Cook,  198. 
Craig  V.  Heis,  228. 
Craig  V.  Vanpelt,  325. 
Craigin  v.  Lovell,  182. 
Grain  v.  Petrie,  433. 
Ciam  V.  Ry.  Co.,  535. 
Cramer  v.  Lovejoy,  186. 
Cramer  v.  Oppenstein,  186. 
Crane  v.  Deming,  280. 
Crane  v.  French,  331. 
Crane  v.  Lipscomb,  338. 
Crane  v.Ry.  Co.,  533. 
Cranston  v.  Smith,  321. 
Crawford   v.  Satterfield,  367,  368, 

376,  378. 
Cress  V.  Blodgett,  441. 
Crews  V.  Cleghom,  516. 
Cribb  V.  Adams,  422. 
Crippen  v.  Thompson,  450. 
Crisman  v,  Heiderer,  231. 
Crist  V.  Burlingame,  351. 
Crofoot  V.  Moore,  451. 
Croghan  v.  Spence,  542. 
Crook  V.  Bank,  474. 
Crookshank  v.  Gray,  183. 
Cropsey  v.  Sweeney,  382. 


Crosby  v.  Home  Co.,  444. 
Cross  V.  Del  Valle,  231. 
Cross  V.  Everts,  321. 
Crouch  V.  Kerr,  138. 
Cruger  v.  Halliday,  340. 
Cruger  V.  Ry.  Co.,  339. 
Cubberly  v.  Cubberly,  441. 
Culligan  v.  Studebaker,  381. 
Culver  V.  Rogers,  202,  301. 
Gumming  v.  Shand,  407. 
Ctunmins  v.  Gray,  289. 
Cunningham  v.  E.  &  F.  H.  Ry.  Co., 

214. 
Cunningham  v.  Judson,  443. 
Cunningham  v.  Ry.  Co.,  459,  460. 
Curran  v.  Curran,  219,  252. 
Currie  v.  Cowles,  226. 
Currier  v.  Rosebrooks,  473. 
Curry  v.  Lackey,  376. 
Curtain  v.  Somerset,  425. 
Curtis  V.  Barnes,  233. 
Curtis  V.  R.  R.,  448. 
Curtis  V.  Richards,  366. 
Curtis  V.  Sprague,  314. 
Cushman  v.  JeweU,  300. 
Cutting  V.  Lincoln,  212,  344. 
Cutting  V.  Massa,  381. 

D. 

Dacosta  v.  Davis,  326. 
Dakin  V.  Ins.  Co.,  300. 
Dale  V.  Grant,  433. 
Dale  V.  Turner,  398. 
Dale  V.  Wilson,  334. 
Dallas  V.  Fernan,  503. 
Dallas  Co.  v.  Mackenzie,  278. 
Damon  v.  Damon,  191. 
Damwert  v.  Osbom,  418. 
Daniel  v.  Morrison,  231. 
Daniels  v.  Andes  Ins.  Co.,  379. 
Daniels  v.  Ballantine,  434. 
Davany  v.  Eggenhoflf,  363. 
Davenport  v.  Short,  329. 
Davenport  Co.  v.   City  of  DaveQf 

port,  219. 
Davidson  v.  King,  278. 


TABLE  OF  CASES. 


XXI 


The  references  are  to  pages. 


Davidson  v.  Nichols,  429. 
Davis  V.  Bonar,  359. 
Davis  V.  Calloway,  440. 
Davis  V.  Choteau,  271. 
Davis  V.  Davis,  399. 
Davis  V.  Guamieri,  428,  438,  533. 
Davis  V.  Henry,  538. 
Davis  V.  Hines,  172.  291,  330. 
Davis  V.  Lambertaon,  463. 
Davis  V.  Mathews,  67,  529. 
Davis  V.  Robinson,  182. 
Davis  V.  Warfield,  392. 
Dawe  V.  Morris,  423. 
Dawson  v.  Callaway,  829. 
Dawson  v.  DiUon,  252. 
Dawson  v.  Ellis,  325. 
Dawson  v.  Vaughan,  283. 
Day  V.  Day,  548. 
Day  V.  Owen,  521. 
Day  V.  Wamsley,  249,  392. 
Dayton  v.  Pease,  453. 
Dayton  v.  Williams,  321. 
Dayton  Ins.  Co.  v.  Kelly,  378. 
DeAnnond  v.  Bohn,  284. 
Deatrick  v.  Defiance,  345. 
DeBolt  V.  Carter,  278. 
Decker  v.  Parsons,  301. 
DeDausure  v.  Gaillard,  24. 
DeForrest  v.  Butler,  264,  267. 
Deichmann  v.  Deichmann,  537. 
DeLaGuerra  v.  Newhall,  382. 
Delany  v.  Reade,  516. 
Delaplaine  v.  Lewis,  484,  542. 
Dennis  v.  Snell,  297. 
Denten  v.  Logan,  398. 
Denton  v.  Danbury,  297,  501. 
Derby  v.  Gallup,  247. 
Derby  v,  Phelps,  519. 
De  Saussure  v.  Gaillard,  452,  453. 
Desmond  v.  Brown,  411. 
DeSobry  v.  Nicholson,  241. 
Devlin  v.  Mayor,  443. 
Devoe  v.  Brandt,  254. 
Devol  V.  Mcintosh,  441. 
Devoss  V.  Gray,  161 ,  296. 
Devries  v.  Warren,  233. 
DeWitt  V.  Porter,  373. 


DeWitt  V.  Swift,  274. 

De  Wolf  V.  Johnson,  419. 

Deyo  V,  Morss,  298. 

Dezengremel  v.  Dezengremel,  328. 

Dial  V.  Holter,  525. 

Dial  V.  Reynolds,  542. 

Dick  V.  Ry.  Co.,  549. 

Dickenson  v.  Breeden,  334,  337. 

Dickerson  v.  Derrickson,  315. 

Dickinson  v.  Dickey,  548. 

Dietrich  v.  Koch,  226. 

Dixon  V.  Ahern,  444. 

Doan  V.  Holly,  179. 

Dobson  V.  Pearce,  216. 

Dodge  V.  Coflln,  380. 

Dodge  V.  Colby,  287. 

Dodge  V,  Perkins,  412. 

Doggett  V,  Richmond,  434. 

Doherty  v,  Holliday,  540. 

Dolcher  v.  Fry,  315. 

Dole  V.  Burleigh,  262. 

Doll  V.  Feller,  162. 

Don  V.  Lippman,  331. 

Donald  v.  St.  Louis,  etc.,  Co.,  547. 

Donne  v.  Lewis,  561. 

Doran  v.  Cohen,  465. 

Dorr  V.  McKinney,  182. 

Dorr  V.  Mills,  266. 

Dorrington  v.  Meyer,  203,  367. 

Douglass  V.  Clark,  450. 

Douglass  V.  Grant,  544. 

Dounce  v.  Dow,  227. 

Dovan  v.  Diiismore,  356. 

Downer  v.  Chesebrough,  326. 

Downer  v.  Read,  212. 

Downer  v.  Staines,  261, 

Downey  v.  Dillon,  529. 

Downey  v.  Whittenberger,  388. 

Doyle  V.  Franklin,  348. 

Doyle  V.  Ins.  Co.,  378. 

Draining  Co.  v.  Brown,  278. 

Draper  v.  Moore,  301. 

Dreutzer  v.  Lawrence,  284. 

Drew  V.  Person,  201. 

Drinkwater  v,  Dinsmore,  460,  4621 

Driscoll  V.  Dunwoody,  391. 

Drury  v.  Clark,  542. 


XXll 


TABLE  OF  CASES. 


The  references  are  to  pages. 


Dubois  V.  Campau,  331. 
Dubois  V.  Hermance,  315. 
Duflfy  V.  O'Donovan,  323. 
Dull  V.  Bricker,  374. 
Dumont  v.  Williamson,  313,  314. 
Dunckel  v.  Dunckel,  537. 
Dunlap  V.  McNeil,  441. 
Dunlap  V.  Robinson,  295. 
Dunlap  V.  Snyder,  396. 
Dunn  V.  Gibson,  280. 
Dunn  V.  Ry.  Co.,  271. 
Dunning  v.  Thomas,  186. 
Duppa  V.  Mayo,  320,  321. 
Dupuis  V.  Thompson,  292. 
Dupuy  V.  Strong,  285. 
Dupuy  V.  "VVurtz,  418. 
Durant  v.  Gardner,  188. 
Durant  v.  Rogers,  322,  323. 
Durbin  v.  Fisk,  255. 
Durch  V.  Chippewa  Co. ,  264. 
Durham  v.  Bischof,  441. 
Dustan  v.  Mc Andrew,  508. 
Duval  V.  Davey,  396,  528. 
Dwiggins  v.  Clark,  241. 
Dye  V.  Dye,  510. 
Dye  V.  Mann,  451. 
Dyer  v.  McPhee,  297. 
Dyerv.  Ry.  Co.,  534. 
Dyer  v.  Scalmanini,  399. 
Dyett  V.  Pendleton,  230. 
Dyson  v.  Ream,  392. 

E. 

Earle  v.  Scott,  153. 
Easter  v.  Severin,  544. 
Eastham  v.  Anderson,  325, 
Eaton  V.  Alger,  314. 
Eaton  V.  George,  516. 
Eaton  V.  Wooly,  227. 
Eavestaff  v.  Russell,  218. 
Eberly  v.  Rupp,  530. 
Eceleston  v.  CUpsham,  485. 
Ecker  v.  Bohn,  321. 
Eckert  v.  Binkley,  302. 
Edelin  v.  Clarkson,  324. 
Eden  v.  Ey.  Co.,  408. 


Edgerton  v.  Page,  230. 

Edie  V.  East  India  Co.,  334. 

Edmiston  v.  Edmiston,  162, 276, 380. 

Edmondson  v.  Phillips,  208. 

Edmonson  v.  Kite,  444. 

Edwards  v.  Albrecht,  385. 

Edwards  v.  Edwards,  539. 

Edwards  v.  Griffiths,  500. 

Edwards  v.  HeUings,  381. 

Edwards  v.  Lent,  366. 

Egan  V.  Tewksbury,  377. 

Eldridge  v.  Bell,  280. 

Ella  V.  A.  M.  U.  Express  Co.,  440. 

EUenger's  Appeal,  332. 

EUer  V.  Lacy,  375. 

Elliott  V.  Lawhead,  494. 

Elliott  V.  Thomas,  322. 

EUis  V.  Eastman,  334. 

Ellis  V.  Keller,  561. 

Ellis  V.  Ry.  Co.,  162. 

Elmore  v.  Sands,  521. 

Ehnquist  v.  Markoe,  315. 

Elting  V.  Vanderlin,  321. 

Elton  V.  Markham,  366. 

Elwee  V.  Hutcliinson,  364. 

ElweU  Y.  Skiddy,  230. 

Elwood  V.  Flannigan,  334. 

Embry  v.  Palmer,  187. 

Emery  v.  Pease,  201. 

Emigh  V.  Ry.  Co.,  438,  478. 

EmUy,  The,  188. 

Emmitt  v.  Brophy,  441. 

Emslie  v.  Leavenworth,  373. 

Engle  V.  Bugbee,  217,  251,  360. 

English  V.  Foxall,  200. 

Eq.  Ac.  Ins.  Co.  v.  Stout,  164. 

Erb  V.  Perkins,  241. 

Ereskine  v.  Murray,  334. 

Ervin  V.  Ry.  Co.,  302. 

Eschv.  Ins.  Co.,  299. 

Espiona  v.  Gregory,  208. 

Essex  V.  Ry.  Co.,  265. 

Estabrook  v.  Messersmith,  278. 

Estes  V.  Farnham,  367. 

Etcheborne  v.  Ayzerais,  399. 

Etheridge  v.  Vernoy,  542. 

Ettlinger  v.  Ry.  Co.,  480,  541, 


TABLE  OF  CASE8. 


XXlll 


Tlie  references  are  to  pages. 


Etz  V.  Wheeler,  381. 

Eureka  I.  &  S.  Wks.  v,  Bresnahan, 

391. 
Evans  v.  Gee,  293. 
Evans  v.  Miller,  440. 
Evans  v,  Paige,  550. 
Everett  v.  Conklin,  188,  286. 
Everett  v.  Drew,  344. 
Everett  v.  Lockwood,  364. 
Everett  v.  Waymire,  278,  279,  286. 
Everitt  v.  Wagmire,  198. 
Eversole  v.  Moore,  234. 
Ewing  V.  Pattison,  239. 
Ewing  V.  Reilly,  450. 

Fsesi  V.  Goetz,  192. 

Fair  v.  Philadelphia,  454. 

Fales  V.  Hicks,  3G6. 

FaUs  Co.  V.  Bridge  Co.,  211. 

Fanning  v.  Hib.  Ins.  Co.,  382,  518. 

Fanson  v.  Linsley,  440. 

Faribault  v.  Hulett,  333. 

Faris  v.  Hoberg,  533. 

Farley  v.  Lincoln,  473. 

Farrar  v.  Triplett,  292. 

Farrington  v.  Payne,  471. 

Farris  v.  Jones,  182. 

Farris  v.  Merritt,  153. 

Farron  v.  Sherwood,  373,  382. 

Faulks  V.  Kamp,  266. 

Fauson  v.  Linsley,  385. 

Fears  v.  Albea,  156. 

Featherson  v.  Norris,  284 

Feev.  Iron  Co.,  276,  495. 

FeUs  v.  Vestvali,  373. 

Fentv.  Ry.  Co.,  427. 

Ferguson  v.  Arnow,  530. 

Ferguson  v.  Carter,  515. 

Ferguson  v.  Gilbert,  185,  189. 

Ferguson  v.  Ramsey,  393. 

Ferguson  v.  Troop,  262. 

Fergiison  v.  Tutt,  251. 

Fern  v.  Vanderbilt,  185. 

Ferreira  v.  Depew,  236. 

Ferrill  v.  Mooney,  440. 


Ferris  v.  Johnson,  249,  346. 
Ferris  v.  Purdy,  315, 
Person  v.  Drew,  289. 
Fetter  v.  Beale,  471. 
Fewster  v.  Goddard,  364. 
Field  V.  City,  445. 
Field  V.  Hurst,  271. 
Field  V.  Ry.  Co.,  427. 
Filer  V.  Ry.  Co.,  430. 
Finch  V.  Finch,  261. 
Fink  V.  O'Neill,  329,  330. 
Finley  v.  Brown,  292. 
Finley  v.  Hayes,  271. 
Finley  v.  Quirk,  363,  397. 
Fish  V.  Folley,  470. 
Fisher  t.  Purdue,  547. 
Fisher  v.  Scholte,  291. 
Fisk  V.  Newton.  520. 
Fisk  V.  Tank,  230,  469. 
Fitch  V.  Bunch,  363. 
Fitzgerald  v.  Hay  ward,  473. 
Fitzgerald  v.  Northcote,  409. 
Fitzhugh  V.  Wiman,  524. 
Fitzpatrick  v.  Gebhart,  298. 
Fitzsimnions  v.  Ins.  Co.,  219. 
Flag  V.  Baldwin,  420. 
Flanders  v.  McVickar,  361. 
Fleet  V.  Youngs,  154. 
Fleischman  v.  Bennett,  468. 
Fleming  v.  Mershon,  487. 
Fleming  v.  People,  334. 
Fletcher  v.  Coombs,  561. 
Flood  V.  Reynolds,  366. 
Floyd  V.  Patterson,  188. 
Flynn  v.  Bailey,  177. 
Foderty  v.  Jordan,  211. 
Poland  V.  Johnson,  397. 
Foley  V.  Addenbroke,  485. 
Foley  V.  Alkire,  2o7. 
Follet  V.  Heath,  237. 
Folsom  V.  Underhill,  448. 
Foot  V.  Bronson,  487. 
Foote  V.  Sprague,  202. 
Force  v.  Warren,  411. 
Ford  V.  Babcock,  332. 
Ford  V.  Mattice,  185. 
Foreman  v.  Bigelow,  353. 


XXIV 


TABLE  OF  CASES, 


77i«  references 

Forrest  v,  Butler,  358. 

Fortescue  v.  Holt,  359. 

Foss  V.  Hildreth,  411,  527. 

Foster  v.  Busteed,  515. 

Foster  v.  Hazen,  333. 

Foster  v.  Stewart,  439. 

Fountaine  v.  Bush,  323. 

Fowle  V.  New  Haven,  471. 

Fowler  V.  N.  Y.  Indem.  Ins.  Ck).,  343. 

Fox  V.  Althorp,  472, 

Foye  V.  Patch,  391. 

Frambers  v.  Risk,  454. 

Francis  v.  Edwards,  226. 

Francis  v.  Schoellkopf ,  407. 

Frank  v.  Irgens,  315. 

Franklin  v.  Talmage,  154. 

Frasier  v.  Williams,  363. 

Freas  v.  Englebrecht,  292. 

Freeland  v.  McCullough,  182. 

Freeman  v.  Carpenter,  241. 

Freer  v.  Denton,  184. 

Frick  V.  White,  233. 

Friermuth  v.  Friermuth,  373. 

Frink  v.  Potter,  430. 

Frisch  v.  Caler,  359,  360,  363. 

Fritz  V.  Barnes,  202,  204,  261. 

Frixen  v.  Castro,  537. 

Frost  V.  Knight,  416. 

Fry  V.  Bennett,  212,  318,  396. 

Frye  v.  Prentice,  449. 

Fuggle  V.  Hobbs,  292. 

Fullam  V.  Steams,  406. 

Fuller  V.  Stebbins,  561. 

Fuller  V.  Steiglitz,  233. 

FuUerton  v.  McCurdy,  537. 

Fulton  V.  Stuart,  444. 

Fultz  V.  Wycoff ,  426. 

Funk  V.  Davis,  158. 

Furgison  v.  State,  376. 

Furnas  v.  Durgin,  451,  452. 

G. 

Gage  V.  Lewis,  376. 
Gaines  v.  Ins.  Co.,  208. 
Gale  V.  Capem,  218. 
Galligan  v.  Fannan,  252. 


are  to  pages. 

Gallup  V.  Ry.  Co.,  230. 
Gallway  v.  Marshall,  525,  526. 
Galpin  v.  Fishburae,  561. 
Gralpin  v.  Page,  514. 
Gandell  v.  Pontigny,  474. 
Gandolfo  v.  State,  559. 
Gans  v.  St.  Paul  Ins.  Co.,  899. 
Garard  v.  Garard,  270. 
Gardner  V.  Armstrong,  321. 
Gardner  v.  Clark,  241. 
Gardner  v.  Cleveland,  450. 
Gardner  v.  Kraft,  153. 
Gardner  v,  Locke,  266. 
Gamer  v.  McCullough,  339,  523. 
Garrett  v.  Love,  228. 
Garvin  v.  Wells,  335. 
Gas  Co.  V.  San  Francisco,  866, 
Gaston  v.  Frankum,  199. 
Gatch  V.  Simkins,  498. 
Gavin  v.  State,  560. 
Gay  V.  Gay,  234. 
Gay  V.  Payne,  510. 

Gay  V.  Pine,  378. 
Gay  V.  Stancell,  515. 

Gaylord  v.  VanLoan,  331. 

Gebrie  v.  Mooney,  219. 

Gennings  v.  Norton,  450. 

George  v,  McAvoy,  203. 

Getty  V.  Hudson,  etc.,  Co.,  286. 

Getty  V.  Ry.  Co.,  298,  299. 

Gibbon  v.  Dougherty,  302, 

Gibbons  v.  Pepper,  24,  404. 

Gibbs  V.  Nash,  323. 

Gibson  v.  Culver,  520. 

Gibson  v.  Garreker,  555. 

Gibson  v.  People,  341. 

Giddings  v.  Barney,  195. 

Gifford  v.  Corrigan,  441. 

Gilbert  v.  Loberg,  265. 

Gilbert  v.  York,  275,  380. 

GUchrist  v.  Gilchrist,  300,  332. 

Gilchrist  v.  Kitchen,  297. 

GUchrist  v.  Moore,  523. 

Gill  V.  Rice,  398. 

Gill  V.  Young,  297. 

Gillam  v.  Sigman,  288. 

Gillett  v.  Fairchild,  340. 


TABLE  OF  CASES. 


XXV 


The  references  are  to  pages. 


GUlett  V.  Freganza,  201,  385. 
Gillett  V.  HiU,  332. 
Gillett  V.  Robins,  297. 
Gillilan  v.  Spratt,  516. 
GiUUand  v.  SeUers,  493. 
Gilmore  v.  Norton,  267. 
Gilmore  v.  Wilbur,  439. 
Gilpin  V.  Wilson,  229,  240,  241. 
Giraud  v.  Beach,  278. 
Girons  v.  State,  155. 
Givens  v.  Wheeler,  298. 
Glass  V.  Hulbert,  544. 
Glen  V.  WaddeU,  487. 
Godard  v.  Gray,  512. 
Goddard  v.  Benson,  381. 
Goddard  v.  Sawyer,  420. 
Godfrey  v.  Godfrey,  501. 
Goebel  v.  Hough,  230. 
Goldberg  v.  Utiey,  180,  182,  199. 
Goldburger  v.  Utley,  269. 
Golden  v.  Manning,  520. 
Goldsmith  v.  Sawyer,  393. 
Goodell  V.  Blumer,  366. 
Gooding  v,  McAllister,  191. 
Goodman  v.  Gay,  261. 
Goodman  v.  Pocock,  474. 
Goodnight  v.  Goar,  278. 
Goodrich  v.  Brown,  335. 
Goodwin  v.  Girffis,  440. 
Gookin  v.  Sanborn,  332. 
Gordon  v.  Culbertson,  292. 
Gordon  v.  Bruner,  234. 
Gordon  v.  Madden,  322. 
Gormley  v.  Mcintosh,  500. 
Gould  V,  Evansville,  etc.,  Ry.  C!o., 

515. 
Gould  V.  Glass,  154,  158. 
Gould  V.  Lasbury,  218. 
Gould  V.  Rumsey,  297. 
Gould  V.  Stafford,  295. 
Gould  V.  Thompson,  444. 
Gould  V.  Williams,  264. 
Gourlay  v.  Hutton,  300,  832. 
Graham  v.  Lynn,  561. 
Graham  v.  Machado,  377,  510. 
Graham  v.  Martin,  519. 
Grain  v.  Aldrich,  479. 


Grand  Lodge,  etc.,  v.  Jesse,  553. 

Grandy  v.  McCleese,  509. 

Granger  v.  Granger,  83. 

Grannis  v.  Hooker,  372. 

Gratan  v.  Wiggins,  329. 

Grattan  v.  Appleton,  418. 

Graves  v.  Spier,  201. 

Gray  v.  Bowles,  500. 

Gray  v.  Brown,  299. 

Gray  v.  Dougherty,  537. 

Gray  v.  Gray,  515. 

Gray  v.  Kendall,  338. 

Gray  v.  Robinson,  561. 

Gray  v.  Ryle,  290,  495. 

Green  v.  BeU,  227. 

Green  v.  Gilbert,  373,  474,  508. 

Green  v.  Green,  288. 

Green  v.  Jones,  537. 

Green  v.  Nunnemacher,  179. 

Green  v.  Ry.  Co.,  408,  520. 

Green  v.  Saddmgton,  325. 

Greene  v.  Dodge,  314. 

Greenfield  v.  Ins.  Co.,  186, 211, 267, 

506. 
Greenough  v.  Smead,  314. 
Greer  v.  Covington,  366. 
Gregg  V.  Hamilton,  538. 
Gregory  v.  Gregory,  240. 
Gridley  v.  Gridley,  441. 
Griffin  v.  Ry.  Co.,  392,  524. 
Griffiths  V.  Eyles,  218. 
Griffiths  V.  Henderson,  278. 
Griggs  V.  Fleckenstein,  434,  457. 
Grinde  v.  Ry.  Co.,  533. 
Griswold  v.  Ry.  Co.,  521. 
Grove  v.  Kansas,  290. 
Grover  &  B.  M.  Co.  v.  Radcliffe, 

514. 
Groves  v.  Tallman,  345. 
Grubb  V.  Salt,  519. 
Guernsey  v.  Ins.  Co.,  192,  194. 
Guille  V.  Swan,  405,  426. 
Guinard  v.  Heysinger,  155. 
Gunderson  v.  Thomas,  353,  484. 
Gutridge  v.  Vanatta,  158. 
Gwaltney  v.  Cannon,  382. 
Gwynn  v.  McCauley,  323. 


XXVI 


TABLE  OF  CASES. 


The  references  are  to  pages. 


H. 


Haas  V.  Shaw,  256. 
Hackett  v.  Bank,  299. 
Haddix  v.  Wilson,  234. 
Haddow  v.  Lundy,  302. 
Hadley  v.  Baxendale,  447. 
Hagan  v.  Burch,  398. 
Hagely  v.  Hagely,  292. 
Hailes  v.  State,  334. 
Haire  v.  Baker,  238,  283. 
Hale  V.  Bank,  2^8. 
Hale  V.  Walker,  221. 
Hall  V.  Cheney,  522. 
Hall  V.  Cresswell,  450. 
HaU  v>  Gilmore,  473. 
Hall  V.  Hall,  463. 
Hall  V.  Marston,  441. 
HaU  V.  Mobley,  501. 
Hall  V.  Nelson,  541. 
HaU  V.  Odber,  513. 
HaU  V.  Olney,  364. 
HaU  V.  Packham,  439. 
Hallam  v.  Jacks,  497,  549. 
Hallett  V.  HaUett,  489. 
Hallock  V.  MUler,  526. 
Ham  V,  Greve,  221. 
Ham  V.  HiU,  451. 

Hambly  v.  Trott,  385,  439. 

Hames  v.  Robinson,  523. 

Hamil  v.  Thompson,  201. 

Hamilton  v.  Hamilton,  554. 

Hamilton  v.  Hough,  356,  358. 

Hamilton  v.  Lomax,  454. 

Hamilton  v.  Ry.  Co.,  300. 

Hamlin  v.  Race,  303. 

Hammer  v.  Kaufman,  347. 

Hammer  v.  Kaughman,  317. 

Hammond  v.  Cockle,  190. 

Hammond  v. Hudson,  etc.,  Co. ,285. 

Hammond  v.  People,  155. 

Hampton  v.  McConnell,  514. 

Hancock  v.  Bournan,  202. 

Hancock  v.  Ritchie,  478. 

Handy  v.  Ins.  Co.,  277,  494,  495. 

Hanna  v.   Jefferson viUe  Ry.   Co., 
328. 


Hans  V.  Louisiana,  24,  452,  453. 
Hanson  v.  Chiatovich,  398. 
Harden  V.  Ry.  Co.,  363. 
Hardin  v.  Boyd,  191,  200. 
Hardin  v.  Helton,  314. 
Harding  v.  Alden,  419. 
Harlow  v.  Hamilton,  212. 
Harney  v.  Corcoran,  297. 
Harper  v.  Chamberlain,  274, 
Harper  v.  Harper,  529. 
Harral  v.  Gray,  292. 
Harriett  V.  Ry.  Co.,  495. 
Harrington  v.  Heath,  276. 
Harriott  v.  Ry.  Co.,  495. 
Harrison  v.  Bank,  192,  194, 195, 
Harrison  v.  Cage,  519. 
Harrison  v.  Harrison,  419. 
Harrison  v.  Hicks,  460. 
Harrison  v.  McCormick,  231, 
Harrison  v.  Nixon,  418. 
Harrison  v.  Stewardson,  488. 
Harris  v.  Avery,  178. 
Harris  v.  Eldridge,  286. 
Harris  v.  Hardeman,  514. 
Harris  v.  Ingledew,  320. 

Harris  v.  Knickerbacker,  323. 

Harris  v.  Ross,  Treas.,  339. 

Harris  v.  Shoutz,  363. 

Harris  v.  White,  334. 

Hart  V.  Evans,  346,  449. 

Hart  V.  McClellan,  340,  537. 

Hart  V.  Meeker,  358. 

Hart  V.  Ry.  Co.,  427. 

Harter  v.  CriU,  396. 

Hartford  Ins.  Co.  v.  Ka'hn,  376. 

HartweU  v.  Page,  211. 

Harvester  Co.  v.  Bartley,  277. 

Harvey  v.  Chilton,  277. 

Hasbrouck  v.  Shuster,  303. 

HaskeU  v.  HaskeU,  182. 

Haskins  v.  Alcott,  153,  162,  271. 

Hassard  v.  Municipality,  335. 

Hastings  v.  Gevynn,  366.  , 

Hatch  V.  Peet,  379. 

Hatch  V.  SpoflFord,  283. 

Haverstock  v.  Trudel,  271. 

Hawkins  v.  Borland,  393. 


TABLE  OF  CASES. 


XXVll 


The  references 

Hawthorne  v.  Hoboken,  836. 

Hayden  v.  Demets,  508. 

Haynes  v.  Trenton,  534,  535. 

Hays  V.  Gas  Co.,  480,  541. 

Hays  V.  Hathorn,  314. 

Hays  V.  Miller,  561. 

Hayward  v.  Cain,  214,  460. 

Haywood  v.  Foster,  396. 

Hazelton  v.  Union  Bank,  351. 

Headington  v.  Neff,  289,  332. 

Headley  v.  Shaw,  154. 

Headly  v.  Roby,  511- 

Heatherly  v.  Hadley,  381. 

Hedges  v.  Roach,  297. 

Hegarty  v.  Shine,  454. 

Hegeler  v,  Henckell,  561. 

Hegler  v.  Eddy,  364. 

Heinrick  v.  England,  505. 

Helger  v.  Addy,  399. 

Henderson  v.  Detroit,  444. 

Henderson  v.  Dickey,  192. 

Hendricks  v.  Decker,  382,  518. 

Hendrix  v.  Money,  489. 

Hennequin  v.  Naylor,  473. 

Henry  v.  Cannon,  297. 

Henry  v.  Cleland,  367. 

Henry  v.  McKittrick,  190,  200,  464 

Henslee  v.  Cannefax,  257. 

Hereth  v.  Smith,  221,  393. 

Herf  V.  Shxilze,  154. 

HeiT  V.  Lebanon,  430. 

Hess  V.  Rosenthal,  553. 

Hewitt  V.  Brown,  178. 

Hexter  v.  Clifford,  281. 

Heye  v.  BoUes,  366. 

Hibbard  v.  W.  U.  Tel.  Co.,  407. 

Hicks  V.  Branton,  277. 

Hier  v.  Grant,  392. 

Higgins  V.  Butcher,  408. 

Higgins  V.  Dewey,  427. 

Higgins  V.  Germaine,  382. 

Hiies  V.  Johnson,  286. 

Hill  V.  Butler,  240. 

Hill  V.  Haskin,  357. 

Hill  V,  Josselyn,  329. 

Hill  V.  Marsh,  284. 

Hill  V.  Perrott,  439. 


are  to  pages. 

Hill  V.  Pine  River  Bk.,  419. 

Hill  V.  Roberts,  252. 

Hill  V.  Rogers,  409. 

Hill  V.  Supervisor,  298. 

Hillier  v.  Stewart,  289. 

Hillman  v.  Hillman,  198,  279,  286. 

Hillman  v.  Newington,  487. 

Hilton  V.  Waring,  314. 

Himmelman  v.  Danos,  510. 

Hinde  v.  Vattier,  334. 

Hines  v.  Jarrett,  179, 

Hinkle  v.  Reid,  375. 

Hirn  v.  State,  334. 

Hirshfield  v.  Bopp,  539. 

Hitchens  v.  Pettingill,  544. 

Hites  v.  Irvine's  Adm.,  516. 

Hoag  V.  Hatch,  449. 

Hoag  V.  Mendenhall,  341,  343. 

Hobart  College  v.  Fitzhugh,  415. 

Hobbs  V.  Ry.  Co.,  289. 

Hochster  v.  De  La  Tour,  416. 

Hockstedler   v.    Hockstedler,   182, 

376. 
Hodgdon  V.  Chase,  331, 
Hodges  V.  Green,  325. 
Hoflfa  V.  Hoffman,  227. 
Hoffman  v.  Gordon,  250. 
Hoffman  v.  Hoffman,  419. 
Hoffman  v.  Peters,  333. 
Hoffman  v.  Plummer,  283. 
Hoisington  v.  Armstrong,  249. 
Holbert  v.  Ry.  Co.,  278. 
Holdridge  v.  Sweet,  295. 
Holeran  v.  School  Dist.,  180. 
Holford  V.  Hatch,  444. 
Holgate  V.  Broome,  240,  338,  357^ 
Holladay  v.  Patterson,  413, 
Holland  v.  Hatch,  515,  516. 
Holland  v.  Malken,  451, 
Hollenbeck  v.  Clow,  247, 
HoUiger  v.  Bates,  484. 
Hollingsworth  v.  Shaw,  525. 
HoUis  V,  Richardson,  311. 
HoUister  v.  Reznor,  559. 
Holloway  v.  Griffith,  416. 
Holloway  v.  Holloway,  465. 
Holly  V.  Graff,  303. 


XXVlll 


TABLE  OF  CASES. 


The  references  are  to  pages. 


Holmes  v.  Remson,  418. 

Holmes  v.  Rhodes,  451. 

HoLmberg  v.  Deafi,  524. 

Holmes  v.  Richet,  241. 

Holmes  v.  Broughton,  387. 

Holmes  v.  Sheridan,  178. 

Holstein  v.  Rice,  311. 

Holyoke  v.  Adams,  304. 

Holzman  v.  Hibben,  380. 

Homan  v.  Laboo,  524. 

Home  Ins.  Co.  v.  Duke,  315,  379. 

Home  Ins.  Co.  v.  Lindsey,  378. 

Homire  v.  Rodgers,  395. 

Hood  V.  State,  419. 

Hook  V.  Murdock,  374 

Hooker  v.  Galligher,  376 

Hoop  V.  Plummer,  271. 

Hoosac  Min.  &  Mill.  Co.  v.  Donat, 

385. 
Hopkins  v.  Cothran,  257. 
Hopkins  v.  Hopkins,  267. 
Hopkins  v.  Ry.  Co.,  336. 
Hopkinson  v.  Shelton,  345,  395. 
Hopper  V.  Hopper,  242. 
Hoppough  V.  Stnible,  239. 
Hopwood  V.  Patterson,  241. 
Horn  V.  Ludington,  266. 
Horn  V.  Ry,  Co.,  334. 
Hornfager  v.  Homfager,  284. 
Horstekote  v.  Menier,  271. 
Horton  v.  Banner,  529. 
Hosley  v.  Black,  373,  379. 
Hostetter  v.  Aimian,  345,  395. 
Hotchkiss  V.  Ladd,  322. 
Hotel  Co.  V.  Sigement,  469. 
House  V.  House,  419. 
House  V.  McKinney,  252,  255. 
House  V.  Meyer,  534. 
Houston  V.  Delahay,  181. 
Houston  V.  Musgrove,  515. 
Howard  F.  &  M.  Ins.  Co.  v.  Cor- 

nick,  347. 
Howard  v.  Babcock,  473. 
Howard  v.  Brower,  323. 
Howard  v.  Daly,  474. 
Howard  v.  Johnston,  304. 
Howard  v.  Moot,  337. 


Howard  v.  Powers,  180. 
Howe  V.  Peckham,  465. 
Howell  V.  Howell,  280. 
Howie  V.  Rea,  227. 
Hoxie  V.  Home  Ins.  Co.,  456L 
Hoyt  V.  McNeil,  332. 
Hubbell  V.  Courtney,  321. 
Hubbell  V.  Livingston,  203. 
Huber  v.  Steiner,  331. 
Hubler  v.  Pullen,  363. 
Hudson  V.  Caryl,  190. 
Hudson  V.  Gilliland,  439. 
Hudson  V.  Plank  Rd.  Co.,  375. 
Hudson  V.  Swan,  300. 
Hudson  V.  Wheeler,  280. 
Huffman  v.  Ackley,  333. 
Huffman  v.  Hughlett,  385,  439. 
Hughes  V.  Feeter,  304,  270. 
Hughes  V.  Murdock,  170. 
Hughes  V.  Ry.  Co.,  459. 
Hughes  V.  United  States,  516. 
Hulbert  v.  Young,  285. 
HuU  V.  Blake,  516. 
Humphreys  v.  Call,  366. 
Humphrey  v.  Merriam,  184. 
Hunt  V.  Bennett,  318. 
Hunt  V.  Bridge,  289. 
Hunt  V.  Dutcher,  381. 
Hunt  V.  Hall,  421. 
Hunt  V.  Peake,  520. 
Hvmter  v.  Bales,  538. 
Hunter  v.  Fitzmaurice,  555. 
Hunter  v.  Mathis,  531. 
Hunter  v.  McCoy,  191. 
Hunter  v.  Powell,  359. 
Hunting  v.  Blun,  539. 
Hurd  V.  Case,  231. 
Hurd  V.  Smith,  293. 
Hurley  v.  Cox,  280. 
Hurst  V.  Litchfield,  373. 
Hussey  v.  Collins,  450. 
Huston  V.  Craighead,  328. 
Hutchings  v.  Moore,  240. 
Hutchins  v.  Hutchins.  26,  405. 
Hutchinson  v.  Ainsworth,  191. 
Hutton  V.  Wetherald,  440. 
Hyatt  V.  Adams,  408. 


TABLE  OF  CASES. 


XXIX 


I. 


Hett  V.  Collins,  280. 
Ilsley  V.  Jewett,  330. 
•  Improvement  Co.  v.  Holway,  262, 
263. 
Ingalls  V.  Bills,  430. 
Ingle  V.  Jones,  208,  211. 
In  re  Blythe^  547. 
In  re  Negus,  451. 
Ins.  Co.  V.  Baldwin,  283. 
Ins.  Co.  V.  Boyle,  191. 
Ins.  Co.  V.  Crandal,  550, 
Ins.  Co.  V.  Gibson,  284 
Ins.  Co.v.  Ins.  Co.,  191,  200. 
Ins.  Co.  V.  McCormick,  221. 
Ins.  Co.  V.  McGookey,  317. 
Ins.  Co.  V.  Ry.  Co.,  520. 
Ins.  Co.  V.  Ross,  203. 
Ins.  Co.  V.  Routledge,  474, 
Ins.  Co.  V,  Tweed,  427. 
Ireland  v.  MaGarvish,  525. 
Iron  Co.  V.  Harper,  295. 
Irwin  V.  Smith,  555. 
Isaacs  V.  Clark,  399. 
Isaacs  V.  Holland,  351. 
Isaaxjs  V.  Wiley,  154. 
Ives  V.  Finch,  511. 

J. 

Jack  V.  Davis,  154. 
Jackson  v.  Bowles,  265. 
Jackson  v.  Varick,  299,  332. 
Jackson  Sharp  Co.  v.  Holland,  365. 
Jacob  V.  Smith,  325. 
Jacobie  v.  Mickle,  484. 
Jacobson  v.  Miller,  493. 
Jacquette  v.  Hugunon,  514. 
Jamaica  Pond  Co.  v.  Chandler,  515. 
James  v.  Allen,  474. 
James  v.  Allen  Co.,  470. 
James  v.  McPhee,  363,  366. 
James  v.  Wilder,  271,  287. 
Janesville  v.  Ry.  Co.,  336. 
Jarnigan  v.  Fleming,  318,  396,  529. 
Jarvis  v.  Robinson,  380. 


The  references  are  to  pages. 

Jasper  v.  Porter,  384. 
Jay  V.  Carthage,  516. 
Jeflfers  v.  Cook,  295. 
Jeflfers  v.  Johnson,  450. 
Jefferson  v.  Asch,  442. 
Jeffries  v.  Ankeny,  25,  406. 
Jeffries  v.  Evans,  234. 
Jencks  v.  Coleman,  521. 
Jenks  V,  Parsons,  537. 
Jenkins  v.  Steanka,  212. 
Jenkins  v.  Thomason,  286. 
Jessup  V.  Bank,  271. 
Jessup  V.  King,  303,  364. 
Jetton  V,  Smead,  524. 
Joest  V.  Williams,  221. 
Johnson  v.  Jones,  203,  233,  546. 
Johnson  v.  Kilgore,  371. 
Johnson  v.  Monell,  484,  643. 
Johnson  v,  Oswald,  391,  392. 
Johnson  v.  Ry.  Co.,  289,  292. 
Johnson  v.  Raylton,  443. 
Johnson  V.  Robertson,  526. 
Johnson  v.  Stelwagen,  398. 
Johnston  v,  Greist,  354. 
JoUey  V.  Plant,  347. 
Jones  V.  Boyce,  430. 
Jones  V.  Broadhurst,  460. 
Jones  V.  Childs,  450. 
Jones  V.  Cortes,  178. 
Jones  V.  Hays,  334. 
Jones  V.  Hoar,  440. 
Jones  V.  Hughes,  181. 
Jones  V.  Jones,  331. 
Jones,  V.  Lapham,  484. 
Jones  V.  Louderman,  367. 
Jones  V.  Ludlum,  208. 
Jones  V.  Palmer,  186. 
Jones  V.  Rahilly,  392. 
Jones  V.  Ry.  Co.,  535. 
Jones  V.  Slate  Co.,  204. 
Jones  V.  Steele,  271,  283. 
Jones  V.  Van  Doren,  200. 
Jones  V.  VanZandt,  183. 
Jordan  v.  James,  256. 
Jordan  v.  Petty,  561. 
Joseph  V.  Holt,  367. 
Josselyn  v.  Stone,  329. 


XKX 


TABLE  OF  CASES. 


The  references  are  to  pages. 


Judah  V.  University  of  Vincennes, 

345,  395. 
Judd  V.  Mosely,  483. 
Judds  V.  Dean,  375. 

K. 

Kahn  V.  Min.  Co.,  303. 
Kalckhoff  v.  Zoehrlaut,  353. 
Kampshall  v.  Goodman,  330. 
Karker  v.  Haverly,  316. 
Kavanaugh  v,  O'Neill,  299. 
Kay  V.  Fredrigal,  529. 
Kay  V.  Whittaker,  263,  363. 
Kechler  v.  Stumme,  340,  386. 
Keegan  v.  WUliams,  538. 
Kehoe  v.  Eounds,  524. 
Keithler  v.  Foster,  412. 
Keightley  v.  Watson,  485. 
Keithler  v.  Foster,  413. 
Kellam  v.  Toms,  380. 
Keller  v.  Johnson,  221. 
Kellogg  V.  Churchill,  272. 
Kellogg  V.  Ry.  Co.,  427. 
Kelly  V.  Peterson,  352. 
Kemp  V,  McCormick,  154. 
Kenchin  v.  Knight,  359. 
Kennedy  v.  Knight,  420. 
Kennedy  v.  Ry.  Co.,  535. 
Kennedy  v.  Shaw,  391. 
Kennedy  v.  Williams,  328. 
Kentucky  v.  Todd,  24,  236,  453. 
Ky.  Flour  Co.  v.  Bank,  226,  234. 
Kenworthy  v.  Williams,  262. 
Kenyon  v.  Quinn,  216. 
Ker  V.  Osborne,  45. 
Kerr  v.  Blodgett,  540. 
Kerr  v.  Hays,  267,  386. 
Kerr  v.  Kerr,  513. 
Kerschbaugher  v.  Slusser,  527. 
Kerstatter  v.  Raymond,  373. 
Kerwhacker  v.  Ry.  Co. ,  457. 
Ketcham  v.  Zerega,-  359,  366. 
Ketchem  v.  Shaw,  542. 
Kewaunee  Co.  v.  Decker,  188,  286. 
KiUipsv.  Put.  Fire  Ins.  Co.,  330, 
456. 


Kimball  v.  Bryan,  189. 

KimbaU  v.  Harmon,  26,  405. 

Kincaid  v.  Howe,  154. 

King  V.  Armstrong,  234 

King  V.  BeU,  157,  161. 

King  V.  Davis,  221. 

Kmg  V.  Eagle,  221. 

King  V.  Ins.  Co.,  238. 

King  V.  Kersey,  416. 

King  V.  Mason,  439,  445. 

King  V.  Root.  411,  527. 

King  V.  Smith,  325. 

Kingsbury      v.     Buchanan,     375, 

377. 
Kingsley  v.  Oilman,  211. 
Kinney  v.  Nash,  525. 
Kinyon  v.  Palmer,  272. 
Kipp  V.  Bell,  71. 
Kirk  V.  Young,  488. 
Kirkman  v.  PhiHps.  385,  440. 
Kitchen  v.  Loudenback,  292. 
Klain  v.  Thompson,  214. 
Kleeman  v.  Collins,  326. 
Klein  v.  Thompson.  461. 
Klonne  v.  Bradstreet,  353. 
Kloune  v.  Bradstreet.  241. 
Knadler  v.  Sharp,  478. 
Knapp  V.  Bunals,  364. 
Knapp  V.  Hobbs,  439. 
Knapp  V.  Roche,  300,  363. 
Knapp  V.  Thomas,  24. 
Knatchbull  v.  Hallett,  123. 
Knight  V.  Gibbs,  526. 
Knight  V.  Ins.  Co.,  314. 
Knight  V.  McDonald,  386. 
Knights  Templar,  etc. ,  Co.  v.  Gra- 

vett,  405. 
Knowlton  v.  Ry.  Co.,  421,  471. 
Knutson  v.  Knapp,  474,  508. 
Konitzky  v.  Meyer,  513. 
Kopelke  v.  Kopelke,  421. 
Korne  v.  Korne,  191.  200. 
Krekeler  v.  Ritter,  518. 
Krhon  v.  Blantz,  323. 
Kronberg  v.  Elder,  381. 
Krug  V.  Ward,  178. 
Kyser  v.  Cannon,  892. 


TABLE  OF  CASES. 


ZXSl 


ITie  references 


L. 


Lacey  v.  Porter,  530. 

Ladd  V.  Arkell,  266. 

Ladd  V.  James,  195. 

Ladd  V.  Ramsby,  356. 

Lade  v.  Trill,  331. 

Ladue  v.  Andrews,  203. 

Laidley  v.  Cummings,  381. 

Lain  v.  Shepardson,  391. 

lamb  V.  Stone,  405,  423. 

Lambkin  v.  Reese,  544. 

Lamine  v.  DorreU,  439. 

Lampson  v.  McQueen,  299. 

Lamson  v.  Falls,  376. 

Lancaster  v.  Ins.  Co.,  186. 

Landis  v.  Morrissey,  398. 

Lane  v.  Beam,  299. 

Lane  v.  Krekle,  253. 

Langford  v.  Freeman,  321. 

Langprey  v.  Yates,  187. 

Langridge  v.  Levy,  426. 

Lannen    v.   Albany    Gas    L.   Co., 

426. 
Lapping  v.  Duffy,  479. 
Larimore  v.  Wells,  262,  270,   374, 

376. 
Larkin  v.  Taylor,  183. 
Lame  v.  Hays,  338. 
Larney  v.  Mooney,  363. 
Lash  V.  Christie,  377. 
Latham  v.  Richards,  302. 
Lathrop  v.  Atwood,  451. 
Laughlin  v.  Vogelsong,  497. 
Lavender  v.  Hudgens,  530. 
Laverty  v.  Moore,  537. 
Lavery  v.  Turley,  325. 
Lawrence  v.  Chase,  322,  323. 
Lawrence  v.  Cook,  519. 
Lawrence  v.  Fox,  441. 
Lawrence  v.  ]\IcCalmont,  351. 
Lawson  v.  Price,  455. 
Lawton  v.  Howe,  289. 
Lazarus  v.  Ry.  Co.,  417. 
Leach  v.  PiUsbury,  418. 
Leak  v.  Comrs.,  277. 
Lieaper  v.  Tatton,  330. 


are  to  pages. 

Lea,vitt  v.  Cutler,  171. 

Lee  V.  AinsUe,  311. 

Lee  V.  Keister,  375. 

Lee  V.  Lee,  234. 

Lee  V.  Ry.  Co.,  536. 

Lee  V.  Terbell,  381. 

Lee  V.  Troy  C.  G.  L.  Co.,  535. 

Lee  V.  Watson,  493. 

Lefler  v.  Field,  221. 

Lehmann  v.  Schmidt,  440. 

Leigh  V.  Smith,  332. 

Leighton  v.  Preston  439. 

Leith  V.  Leith,  419. 

Lennox  v.  Reed,  541. 

Leonard  v.  Rogan,  201. 

Leonard  v.  Sweetzer,  315. 

Leroux  v.  Brown,  326. 

Leroux  v.  Murdock,  363. 

Leroy  v.  Crowninshield,  331, 

Leslie  v.  Leslie,  256. 

Lessee  of  Cin.  v.  Pres.  Ch.,  329, 

Lester  v.  Wright,  157,  158. 

Leuck  V.  Heisler,  530. 

Levins  v.  Rovegno,  168,  343, 

Levy  V.  Bend,  230. 

Levy  V.  Brannan,  531. 

Leward  v.  Baseley,  409. 

Lewis  V.  Coulter,  208. 

Lewis  V.  Davis,  316. 

Lewis  V.  Phoenix  Ins.  Co.,  456, 

Lewis  V.  Williams,  491. 

Leyde  v.  Martin,  211. 

Liedersdorf  v.  Bank,  180. 

Life  Ass.  Soc.  v.  Cuyler,  340. 

Lightfoot  V.  Cole,  315. 

Lightly  V.  Clouston,  439. 

Lignot  V.  Redding,  233. 

Lillienthal  v.  Anderson,  211. 

Lindsay  v.  Wyatt,  524. 

Lindsey  v.  Miller,  329. 

Linn  Boyd  T.  W.  Co.  v.  Terrill,  333, 

Linneman  v.  Moross,  442. 

Linton  v.  Hurley,  511. 

Lipe  V.  Becker,  289, 

Lipperd  v.  Edwards,  278. 

Litowich  V.  Litowich,  419. 

Littell  V.  Sayre,  284. 


xxxu 


TABLE  OF  CASES. 


The  references  are  to  pages. 


Little  V.  Blunt,  330. 

Little  V.  Harrington,  241. 

Little  V.  Little,  450. 

Little  V.  Martin ,  444. 

Liverpool,    etc.,    Steam     Co.     v. 

Phoenix  Ins.  Co.,  420. 
Livesey  v.  Hotel,  378,  379,  456. 
Livingston  v.  Harrison,  247. 
Lockard  v.  Barton,  445. 
Lockwood  V.  Bigelow,  289. 
Lockwood  V.  Thunder  Bay  Co.,  444. 
Lockwood  V.  Wildman,  382,  518. 
Loeb  V.  Weis,  267,  359. 
Lofton  V.  Moore,  547. 
Logan  V,  Caffrey,  469. 
Logan  V,  Wallis,  440. 
Logansport  v.  Shirk,  558. 
Long  V.  DeBevis,  271,  288. 
Long  V.  Fleming,  552. 
Long  V.  Heinrich,  478. 
Longchamp  v.  Kenny,  439. 
Longmeid  v.  HoUiday,  425. 
Loomis  V.  Brown,  486. 
Loop  V.  Gould,  380. 
Lord  v.  Harte,  539. 
Lord  V.  Lord,  442. 
Lord  V.  Morris,  329. 
Lord  V.  Tyler,  269. 
LoriUard  v.  Clyde,  160,  341. 
LosAngeles  v.  Signoret,  376. 
Losee  v.  Clute,  425. 
Lott  V.  Mitchell,  450. 
Loudenback  v.  Collins,  515,  516. 
Lough  v.  Outerbridge,  163. 
Love  v.  Oldham,  227. 
Lovejoy  v.  Murray,  481. 
Lovelock  v.  Franklyn,  416. 
Loving  V.  State,  155. 
Low  V.  Mussey,  513. 
Lowber  v.  Connit,  201,  385. 
Lowe  V.  Burke,  278. 
Lowe  V.  Lehman,  393. 
Lowell  V.  Lowell,  210. 
Lowry  v.  Dutton,  157. 
Lowry  V.  Harris,  271,  284,  302. 
Lowry  v.  Jackson,  284. 
Lucker  v.  C/Omm.  335. 


Luling  V.  Ins.  Co.,  489. 
Lumbert  v.  Palmer,  378. 
Lumley  v.  Gye,  433. 
Lumpkin  v.  Collier,  299. 
Lund  V.  Tyngsboro,  431. 
Lutes  V.  Briggs,  487. 
Luther  v.  Borden,  24. 
Lyle  V.  Clason,  411. 
Lyman  v.  Lull,  450. 
Lyman  v.  Stanton,  226. 
Lynch  v.  Eastern,  etc.,  Co.,  489. 
Lynch  v.  Nurdin,  428,  430,  434. 
Lynd  v.  Picket,  363. 
Lyon  V,  Talmadge,  518. 
Lytle  V.  Lytle,  375,  478. 

M. 

Macy  V.  Childress,  323. 
Mackey  v.  Auer,  202,  505. 
Mackubin  v.  Clarkson,  508. 
Macomber  v.  Nichols,  533. 
Macqueen  v.  Babcock,  332. 
Madge  v.  Puig,  198,  469. 
Magee  v.  Kast,  373. 
Maguire  v.  Maguire,  419. 
Maguire  v.  O'Donnell,  211. 
Maher  v.  Norwich  Co.,  408. 
Maholm  v.  Marshall,  494. 
Mahr  v.  Bartlett,  415. 
Malin  v.  Bull,  180. 
Mandeville  v,  Welch,  478. 
Manning  v.  Clement,  528. 
Manning  v.  Pippen,  323. 
Manny  v.  French,  366. 
Mfg.  Co.  V.  Beecher,  279. 
Mfg.  Co.  V.  Colgate,  226,  235,  240. 
Mfg.  Co.  V.  Hall,  229,  230. 
Marble  v.  Keyes,  472. 
Marble  v.  Worcester,  431,  432. 
Marbourg  v.  Smith,  530. 
Marcellus  v.  Countryman,  515. 
Margetts  v.  Bays,  218,  329. 
Marie  v.  Garrison,  350,  537. 
Mariner  v.  Smith,  354. 
Marius  v.  Bickwell,  181,  287. 
Marriott  v.  Hampton,  517. 


TABLE  OF  CASES. 


XXXlll 


The  references  are  to  pages. 


Marsden  v.  Soper,  495. 
Marshall  v.  Aiken,  315. 
MarshaU  v.  Shafter,  391. 
Marshall  v.  Welwood,  405. 
Marston  v.  Sweet,  321,  323,  324. 
Martens  v.  Loewenberg,  180. 
Martin  v.  Blanchett,  322. 
Martin  v.  Elden,  559. 
Martin  v.  Henrickson,  526. 
Martin  v.  KunzmuUer,  226. 
Martin  v.  Martin,  337. 
Martin  v.  McDonald,  289. 
Martin  v.  Merritt,  537. 
Martin  v.  Roney,  516. 
Martineau  v.  Steele,  558. 
Marvin  Safe  Co.  v.  Ward,  426. 
Marzetti  v.  Williams,  407. 
Mass.  Mut.  Life  Ins.  Co.  v.  Kellogg, 

85. 
Mason  v.  Alexander,  495. 
Mason  v.  Eldred,  512. 
Mason  v.  Whitely,  298. 
Massie  v.  Stradford,  145,  239. 
Masters  v.  Freeman,  278. 
Masterson  v.  Matthews,  382. 
Mather  v.  Hutchinson,  391. 
Matthews  v.  Copeland,  186. 
Matthews  v.  Mfg.  Co.,  303. 
Maud  V.  Maud,  416. 
Mauldin  v.  Ball,  250. 
Maumus  v.  Champion,  457. 
Maxedon  v.  State,  158. 
Maxim  v.  Wedge,  365. 
Maxwell  v.  Brooks,  182,  376. 
Maxwell  v.  Goetschins,  498. 
MaxweU  v.  Pratt,  285. 
May  V.  Armstrong,  231. 
May  V.  Davidge,  240. 
May  V.  Parker,  276. 
May  V.  Sloan,  322. 
Maybee  v.  Moore,  322. 
Mayer  v.  Ry.  Co.,  456. 
Mayer  Co.  v.  Goldenberg,  265. 
Mayes  v.  Goldsmith,  371. 
Mayor  v.  Clarke,  550. 
Mayor  v.  Lord,  445. 
Mayor  v.  Mabie,  227. 


McAbee  v.  Randall,  240,  353,  354. 
McAllister  v.  Howell,  257. 
McArdle  v.  McArdle,  280,  328,  363. 
McAroy  v.  Wright,  256. 
McArthur  v.  Canal  Co.,  230. 
Mc Arthur  v.  Franklin,  541,  542. 
McCafiferty  v.  Ry.  Co.,  459. 
McCaffrey  v.  Carter,  471. 
McCamant  v.  Batsell,  504. 
McCammack  v.  McCammack,  261. 
McCan  pbell  v.  Vastine,  376. 
McCann  v.  Pennie,  321. 
McCarthy  v.  Garroghty,  181,  270, 

287. 
McCaslan  v.  Latimer,  299. 
McCauley  v.  Davidson,  533. 
McCauley  v.  Long,  264. 
McClanahan  v.  Williams,  353. 
McCloskey  v.  Strickland,  157. 
McClure  v.  Otrich,  322. 
McClurg  V.  Phillips,  191. 
McCombs  V.  Howard,  538. 
McConihe  v.  HoUister,  240. 
McCorkle  v.  Herrmann,  340. 
McCormick  v.  Basal,  416. 
McCormick  v.  Blossom,  351. 
McCormick  v.  Pickering,  218. 
McCormick  v.  Ry.  Co.,  495. 
McCormick  v.  Tate,  339. 
McCormick  v.  Wheeler,  561. 
McCormick  H.  M.  Co.  v.  Wilson, 

506. 
McCoy  V.  St.  Ry.  Co.,  551. 
McCracken  v.  West,  427. 
McCue  V.  Smith,  325. 
McCuUough  V.  Baker,  473. 
McDonald  v.  Flour  Mills,  395. 
McDonald  v.  M.  V.  H.  Assn.,  321. 
McDonald  v.  Peacemaker,  440. 
McDonald  v.  People,  155. 
McDonald  v.  SnelUng,  432,  434. 
McDonough  v.  Kans,  376. 
M'Elmoyle  v.  Cohen,  331. 
McElwee  v.  Hutchinson,  348. 
McEntee  v.  Cook,  342. 
McEwen  v.  Hussey,  289,  295. 
McGonigal  v.  Colter,  280. 


XXXIV 


TABLE  OF  CASES. 


The  references 

McGregor  v.  Morrow,  500. 
McKee  v.  Eaton,  284. 
McKeighan  v.  Hopkins,  298. 
McKenzie  v.  L'Amoureux,  489. 
McKinney  v.  McKinney,  190,  270, 

329. 
McKinney  v,  Neil,  430. 
McKinster  v.  Hitchcock,  505. 
McKyring  v.  Bull,  81,  85,  364,  397. 
McLachlan  t.  McLachlan,  441. 
McLane  v.  Paschal,  299. 
McLaughlin  v.  Nichols,  381. 
McLaughlin  v.  State,  155. 
McLeadv.  Ins.  Co.,  219. 
McLeran  v.  Morgan,  152,  157. 
McMahan  v.  Spinning,  219. 
McMahon  v.  Allen,  481. 
McMahon  v.  Birdwell,  262. 
McMannus  v.  Smith,  232,  386. 
McMinn  v.  O'Connor,  303. 
McMurphy  v.  Walker,  363. 
McMurray  v.  Gifford,  221,  356. 
McNair  v.  Toler,  271,  283. 
McNees  v.  Mo.  Pac.  Ry.  Co.,  385. 
McNeil  V.  Commandery,  311. 
McNutt  V.  Kaufman,  372. 
McPhail  V.  Hyatt,  278. 
McQueen  v.  Babcock,  299. 
McWilliam  v.  Allan,  503. 
Mead  v.  Day,  366. 
Meade  v.  Thorne,  203. 
Meader  v.  Malcolm,  257. 
Meagher  v.  Morgan,  373. 
Meara's  Adm.  v.  Holbrook,  158. 
Med.  Coll.  V.  Newton,  375. 
Meehan  v.  Savings  Bank,  365,  366. 
Meeker  v.  Claghorn,  314. 
Mehurin  v.  Stone,  378,  379,  456. 
Meiss  V.  Gill,  382,  518. 
Meixell  v.  Kirkpatrick,  495. 
Mellen  v.  Whipple,  441. 
Menifee  v.  Clark,  289. 
Mentz  V.  Cook,  163. 
Meredith  v.  Lackey,  256. 
Merriam  v.  Miller,  280. 
Merriam  v.  Ry.  Co. ,  520. 
Merrill  v.  ElUott,  553. 


are  to  pages. 

Merrill  V.  Ry.  Co.,  473. 

Merrill  v.  Wedgwood,  391. 

Merritt  v.  Walsh,  271. 

Merryman  v.  State,  329. 

Mescall  v.  Tully,  354. 

Metcalf  V.  Metcalf,  561. 

Metcalf  V.  Watertown,  163. 

Meth.  Ch.  V.  Wood,  162. 

Metrop.  L.  Ins.  Co.  v.  Meeker,  347. 

Metz  V.  Albrecht,  509. 

Metzner  v.  Baldwin,  202. 

Meyer  v.  Bhikleman.  292,  338. 

Meyer  v.  Dubuque,  274. 

Meyer  v.  Hibsher,  315,  371. 

Meyer  v.  Lowell,  441. 

Meyer  v.  VanCollem,  286. 

Milbank  v.  Jones,  390. 

Milburn  v.  Phillips.  549. 

Miles  V.  Caldwell,  515. 

Miles  V.  Lingerman,  391. 

Millard  v.  Baldwin,  338. 

MiUer  v.  Billingsly,  441. 

Miller  v.  Brigham,  249. 

Miller  v.  Garling,  300. 

Miller  v.  Goddard,  474. 

MiUer  v.  Hall,  540. 

Miller  V.  Ins.  Co..  393. 

Miller  v.  Longacre,  244. 

Miller  v.  Losee,  252. 

Miller  v.  Mans,  516. 

Miller  v.  McKenzie,  540. 

Miller  v.  MiUer,  539. 

Miller  v.  State,  329. 

MUler  V.  Tobin,  361. 

Milligan  v.  Mitchell,  489. 

Milligan  v.  State,  3SG. 

Milliken  V.  Tel.  Co.,  188. 

Milliken  v.  W.  U.  Tel.  Co.,  350. 

Mills  V.  Duryea,  514. 

Mills  V.  Murry,  478. 

MUls  V.  Rice,  328. 

Millspaugh  v.  Mitchell,  524. 

Mims  V.  Swartz,  334. 

Mining  Co.  v.  Mining  Co.,  515. 

Minis  V.  United  States,  333. 

Minter  v.  Broach,  330. 

MitcheU  V.  Allen,  303,  365. 


TABLE  OF  CASES. 


XXXV 


The  references  are  to  pages. 


Mitchell  V,  Brown,  261. 
Mitchell  V.  Campbell,  332. 
Mitchell  V.  Harmony,  445. 
MitcheU  v.  King,  325. 
Mitchell  V.  MoCabe,  292. 
MitcheU  v.  Shell,  483. 
Modlin  V.  N.  W.  T.  Co.,  278. 
Moen  V.  Eldred,  208. 
Moflfatt  V.  Pratt,  264. 
Moflfet  V.  Sackett,  227. 
Mohr  V.  Barnes,  364. 
Momry  v.  Kirk,  509. 
Monroe  v.  Douglass,  513. 
Monroe  v.  Gates,  407. 
Montgomery  v.  Deeley,  334. 
Montgomery  v.  Duley,  337. 
Moody  V.  Baker,  526. 
Moody  V.  Osgood,  462. 
Moon  V.  Johnson,  302. 
Moon  V.  McKnight,  194. 
Mooney  v.  Kennett,  335, 
Moore  v.  Boyd,  315. 
Moore  v.  McSleeper,  516. 
Moore  v.  Murrah,  483. 
Moore  v.  Woodside,  220. 
Morford  v.  White,  440. 
Morgan  v.  Booth,  363. 
Morgan  v.  Morgan,  483. 
Morgan  v.  Smith,  230. 
Morgan  v.  Spangler,  226. 
Morley  v.  Smith,  363. 
Morris  v.  Corson,  531. 
Morris  v.  Pugh,  382. 
Morris  v.  Thomas.  358. 
Morris  v.  Wheeler,  542. 
Morrison  v.  Baker,  322. 
Morrison  v.  Fishell,  292,  375. 
Morrow  v.  Bright,  226. 
Mortland  v.  Holton,  252,  256. 
Morton  v.  Morton,  244. 
Moser  v.  Jenkins,  363. 
Moss  V.  Printing  Co.,  292. 
Moss  V.  Shear,  303. 
Mott  V.  Burnett,  245. 
Moultrie  v.  Hunt,  418. 
Mount  V.  Ry.  Co.,  255. 
House's  Case,  405. 


Mowry  v.  Chase,  513. 

Muldoon  V.  Blackwell,  257. 

Muldowner  v.  M.  &  E.  P..  Co.,  408. 

Muldowney  v.  Ry.  Co.,  277. 

Mulford  V.  Estrudillo,  212. 

MulhoUan  v.  Scoggin,  377. 

Mullaly  V.  Holden,  321. 

MuUendore  v.  Scott,  219. 

MuUer  v.  Earle,  302. 

Munday  v.  Vail,  492,  496,  498. 

Munn  V.  Taulman,  208. 

Munroe  v.  Stickney,  407. 

Muntz  V.  Foster,  359. 

Murdock  v.  Brooks,  367. 

Mure  V.  Kaye,  531. 

Murphy  v.  Carter,  529. 

Murphy  V.  McGraw,  184. 

Muser  v.  Lewis,  396. 

Mussey  V.  White,  382. 

Mussina  v.  Clark,  263. 

Myers  v.  Burns,  227. 

Myers  v.  Davis,  233. 

Myers  v.  Fenn,  540. 

Myers  v.  Lawyer,  547.        , 

Myers  v.  Malcolm,  426. 

N. 

Naftzger  v.  Greeg,  366. 
Napa  V.  Easterby,  335. 
Nash  V.  City  of  St.  Paul,  352,  357, 

397. 
Nashv.  Tupper,  331. 
Nashville  v.  Elkin,  408. 
Nathan  v.  Lewis,  376,  379. 
Nathans  v.  Hope,  470. 
Nat'l  Bank  v.  Meerwaldt,  363,  366. 
Nat'l  Trust  Co.  v.  Gleason,  385,  473L 
Nau  V.  Gobrecht,  474. 
Needham  v.  Pratt,  233. 
Neil  V.  Collage,  284. 
Neil  V.  DiUon,  154. 
Nelson  v.  Brodhack,  243,  393. 
Nelson  v.  Brown,  515. 
Nelson  v.  Highland,  271. 
Nelson  Lumber  Co.  v.  Pelan,  359. 
Netcott  v.  Porter,  217,  249,  346. 


XXXVl 


TABLE  OF  CASES. 


The  references  are  to  pages. 


Neteler  v,  Culies,  161. 

Neuberger  v.  Webb,  365. 

New  V.  Wamback,  256. 

Newark  v.  Funk,  539. 

Newbould  v.  Warren,  284. 

Newbury  v.  Ry.  Co.,  466. 

Newcomb  v.  Dewey,  484. 

Newcomb  v.  Ins.  Co.,  214. 

Newcomb  v.  Weber,  256. 

NeweUv.  Newell,  299. 

N.  J.  Exp.  Co.  V.  Nichols,  457. 

Newlon  v.  Reitz,  278,  279. 

Newman  v.  Jenne,  523. 

Newman  v.  Kerson,  420. 

Newman  v,  Smith,  286. 

New  Orleans  v.  Labatt,  335. 

Newsom's  Admr.  v.  Ran,  299. 

Newson  v.  Ran,  332, 

Newton  v.  AUis,  298. 

Newton  v.  Swazey,  325. 

Newton  Mfg.  Co.  v.  White,  440. 

N.  Y.  Guar.  Co.  v.  Gleason,  385. 

N.  Y.  Ice  Co.  V.  Ins.  Co.,  191. 

Nichol  v.;VIcAllister,  278. 

Nichols  V.  Briggs,  264. 

Nichols  V.  Dobbins,  271. 

Nichols  V.  Drew,  491. 

Nichols  V.  Dusenbury,  223. 

Nichols  V.  Marsland,  405. 

Nichols  V.  Weaver,  519. 

Nichelson  v.  Ingram,  515. 

Nicolay  v.  Fritschee,  480. 

Nimocks  v.  Inks,  51. 

Ninde  v.  Oskaloosa,  365. 

Nixon  V.  Beard,  315. 

Norden  v.  Jones,  234. 

Norman  v.  Rogers,  198,  279. 

Norris  v.  Amos,  382. 

Northrup  V.  Miss.  Valley  Ins.  Co., 

394. 
Northcraft  v.  Martin,  202. 
Norton  v.  Sewell,  428,  479. 
Nosier  v.  Hunt,  375. 
Nosser  v.  Corwin,  301. 
Nourse  v.  Prime,  505. 
Noyes  v.  Sawyer,  541. 
Nunez  v.  Morgan,  323. 


0. 


Oakley  v.  Morton,  378,  459. 
Oakley  v.  Tugwell,  280. 
O.  ife  M.  R.  Co.  V.  Nickless,  377. 
O'Brien  v.  Fitzgerald,  201,  385. 
Ocean  Ins.  Co. ,  v.  Francis,  334. 
O'Conner  v.  Hurley,  189. 
O'Connor  v.  Koch,  265. 
O'Donohue  v.  Hendrix,  293, 
Oechs  V.  Cook,  212. 
Ohlweiler  v.  Lohmann,  551. 
Oliphant  v.  Mansfield,  487. 
Olive  V.  Olive,  439. 
Oliver  v.  La  Valle,  430. 
Olmstead  v.  Brush,  442. 
O'Neal  V.  Brown,  471. 
Ontario  Bk.  v.  Root,  323. 
Opdyke  v.  Marble,  263. 
Orb  V.  Coapstick,  219. 
Orman  v.  Orman,  202. 
Orphan  Soc.  v.  Wolpert,  180l 
Orton  V.  Noonan,  227. 
Orvis  V  Goldschmidt,  203. 
Osborne  v.  Endicott,  323. 
Osburn  v.  U.  S.  Bank,  23. 
Owen  V.  Henman,  410. 
Owings  V.  Hull,  334. 
Oyler  v.  Scanlan,  377. 

P. 

Packard  v.  Slack,  448,  464. 

Packet  Co.  v.  Piatt,  506. 

Pa.  Co.  V.  Sears,  266. 

Page  V.  Monks,  325. 

Paine  v.  French,  541. 

Paine  v.  Ins.  Co.,  515. 

Palmer  v.  Davis,  271,  283,  388,  491. 

Palmer  v.  Hayes,  481. 

Palmer  v.  Sawyer,  456. 

Palmer  v.  Smith,  529. 

Palmer  v.  Yager,  542. 

Pangburn  v.  Bull,  530. 

Papin  V.  Ryan,  334. 

Parker  v.  Berry,  329. 

Parker  v.  Cohoes,  434. 

Parker  v.  Hays,  363. 


TABLE  OF  CASES. 


XXX  VU 


The  references 

Parker  v.  Irvine,  329. 

Parker  v.  Monteith,  357. 

Parker  v.  Rhodes,  300. 

ParshaU  v.  Tillon,  211. 

Parsons  v.  Lyman,  418. 

Parsons  v.  Sutton,  233. 

Pastene  v.  Adams,  434. 

Partenheimer    v.    VanOrder,   179, 

180. 
Patterson  v.  Adams,  339. 
Patterson  v.  Clark,  392. 
Patterson  v.  Hollister,  265. 
Patterson  v.  Prior,  385. 
Patterson  v.  Scot.  Am.  Co.,  555. 
Pattison  v.  Adams,  310,  523. 
Pattison  v.  Vaughan,  182,  376. 
Patton  V.  Camplin,  375. 
Paul  V.  Frazier,  480. 
Pavd  V.  Sloson,  406,  445. 
Pavey  v.  Pavey,  245. 
Paving  Co.  v.  Congreve,  188. 
Pavisich  v.  Bean,  373. 
Pawling  V.  Bird,  419. 
Payne  v.  Flournoy,  271. 
Payne  v.  Treadwell,  309. 
Peabody  v.  Ins.  Co.,  284. 
Pearce  v.  Mclntyre,  265. 
Pearsall  v.  Dwight,  331. 
Pearsons  v.  Lee,  376. 
Pease  v.  Ry.  Co. ,  495. 
Pease  v.  Rush,  478. 
Peck  V.  Hensley,  182. 
Peck  V.  Parchin,  219. 
Peck  V.  School  Dist.,  487. 
Peden  v.  Mail,  252. 
Peebles  v.  Isaminger,  220. 
Pegram  v.  Stoltz,  332. 
Pelton  V.  Fannin,  542. 
Pennington  v.  Gibson,  380. 
Penn.  Co.  v.  Sedgwick,  266. 
Pennywit  v.  Foote,  514. 
People  V.  Booth,  289. 
People  V.  Collins,  154. 
People  V.  Cook,  154. 
People  V.  Crooks,  283. 
People  V,  Da  well,  419. 
People  V.  Dennison,  300. 


are  to  pages. 

People  V.  McCumber,  262. 

People  V.  Potter,  336. 

People  V.  Ry.  Co.,   290,  292,  463, 

495. 
People  V.  Ryder,  266. 
People  V.  San  Francisco,  221. 
People  V.  Smith,  337. 
People  V.  Tel.  Co.,  271,  283. 
People  V.  Walker,  341,  343. 
People  ex  rel.  Cornell  v.  Knox,  348. 
Peoria,  etc.,  Ins.  Co.  v.  Walser,  375, 
Perin  v.  McMichen,  418. 
Perkins  v.  Davis,  293. 
Perkins  v.  IngersoU,  271. 
Perkins  v.  Moore,  515. 
Perkins  v.  Walker,  399. 
Perrott  v.  Shearer,  214,  460. 
Perry  v.  Dickerson.  469,  512. 
Perry  v.  Lewis,  331. 
Ferryman  v.  Greenville,  336. 
Petersen  v.  Ochs,  369. 
Peterson  v.  Allen,  377. 
Peterson  v.  Nehf ,  515. 
Petrie  v.  Bury,  485. 
Pettibone  v.  Edwards,  541. 
Pettibone  v.  Hamilton,  487. 
Pettit  V.  Hamlin,  321. 
Peyton  v.  Rose,  192,  194. 
Pfister  V.  Dascey,  178. 
Pharis  v.  Gere,  301. 
Phelps  V.  Duffy,  380. 
Philibert  v.  Burch,  256. 
Phillips  V.  Evans,  376. 
Phillips  V.  Jansen,  411. 
Phillips  V.  PhiUips,  378. 
Phoenix  Ins.  Co.  v.  Stark,  310,  38& 
Pickering  v.  Tel.  Co.,  292. 
Pickman  v.  Trinity,  439. 
Picquet  v.  McKay,  518, 
Pierce  v.  Bicknell,  269. 
Pierce  v.  Indseth,  422. 
Pierce  v.  Langdon,  523. 
Pierce  v.  Mintum,  292. 
Pierce  v.  Tiersch,  228. 
Piercy  v.  Adams,  321. 
Piercy  v.  Sabin,  518. 
Pierrepont  v.  Lovelass,  271. 


iXXVUl 


TABLE  OF  CASES, 


The  references  are  to  pages. 


Pierson  v.  Ry.  Co.,  186. 
Pierstoflf  v.  Jorges,  381. 
Pinch  V.  Anthony,  303,  304. 
Pinckard  v.  Milwine,  155. 
Pine  V.  Smith,  420. 
Piper  V.  Hoard,  277,  403. 
Pitcher  v.  Hennessey,  238. 
Pittman  v.  Myrick,  292. 
Plainfield  v.  Plainfield,  547. 
Piatt  V.  Colvin,  488,  489. 
Piatt  V.  Potts,  405. 
Plumer  v.  Clarke,  299,  332. 
Plummer  v.  Mold,  178. 
Plymouth  v.  Milner,  278. 
Poev.  Ry.  Co.,  541. 
Pollard  V.  Lyon,  526. 
Polley  V.  Wilkisson,  286, 
Polly  V.  Ry.  Co.,  341. 
Poly  V.  Williams,  382. 
Pomeroy  v.  Lappens,  335,  387. 
Pool  V.  Pratt,  520. 
Popijoy  V.  Miller,  544. 
Port  V.  Jackson,  451. 
Porter  v.  Fletcher,  285. 
Porter  v.  Vaughn,  516. 
Porter  v.  Waring,  335. 
Pottgieser  v.  Dorn,  363. 
Potter  V.  Ellice,  271,  483. 
Pottinger  v.  Garrison,  292,  293. 
Powder  Co,  v.  Hildebrand,  353. 
PoweU  V.  Peveney,  428,  434. 
Powell  V.  Reese,  385,  439. 
Power  Co.  v.  Eastman.  535. 
Powers  V.  Ames,  276,  318. 
Powers  V.  Armstrong,  216,  217. 
Powers  V.  Prov.  Inst. ,  548. 
Powers  V.  Ware,  472. 
Preble  v.  Baldwin,  325. 
Prell  V.  McDonald,  336, 
Prentiss  v.  Blake,  154. 
Preston  v.  Hawley,  444. 
Preston  v.  Roberts,  379. 
Price  V.  Ry.  Co.,  289. 
Price  V.  Ward,  517. 
Price  V.  Weaver,  321, 
Prime  v.  Cobb,  523. 
Prince  v.  Towns,  157, 158, 


Prindle  v.  Caruthers,  311,  315,  353, 

367,  371. 
Proctor  V.  Jennings,  434. 
Proprietors  v.  Call,  334. 
Prost  V.  More,  398. 
Prouty  V.  Ry.  Co.,  302. 
Pry  V.  Ry.  Co..  208. 
Pudney  v.  Burkhart,  204,  261. 
Puffer  V.  Lucas,  304. 
Pulliam  V.  Burlingame,  392. 

Q. 

Quick  V.  Corlies,  331. 
Quinby  V.  Ry.  Co.,  521. 
Quinn  v.  Lloyd,  348,  364. 
Quinney  v.  Stockbridge,  339. 

R. 

RacouiUat  v.  Rene,  212. 

Radde  v.  Ruckgaber,  581. 

Ry.  Co.  V.  Acres,  521. 

Ry.  Co.  V.  Bank,  479. 

Ry.  Co.  V.  Bales,  427. 

Ry.  Co.  V.  Barnes,  353. 

Ry.  Co.  V.  Barrett,  520. 

Ry.  Co.  V.  Berkey,  533. 

Ry.  Co.  V.  Blackshire,  334. 

Ry.  Co.  V.  Bowns,  347. 

Ry.  Co.  V.  Brigham,  534, 

Ry.  Co.  V.  Burress,  155. 

Ry.  Co.  V.  Byrum,  553. 

Ry.  Co.  V.  Cliase,  427. 

Ry.  Co.  V.  Chester.  466,  467. 

Ry.  Co.  V.  Chew,  440. 

Ry.  Co.  V.  Cole,  455. 

Ry.  Co.  V.  CoUam,  266. 

Ry.  Co.  V.  Crawford,  206,  534. 

Ry.  Co.  V.  Davidson,  493. 

Ry.  Co.  V.  Dickerson,  462. 

Ry.  Co.  V.  Dunlap,  533,  535,  53S. 

Ry.  Co.  V.  Finney,  297. 

Ry.  Co.  V.  Forbes,  367. 

Ry.  Co.  V.  Grames,  534. 

Ry.  Co.  V.  HaU,  278. 

Ry.  Co.  V.  Harris,  399. 

Ry.  Co.  V.  Harwood,  533. 


TABLE  OF  CASES. 


XXXIX 


The  references  are  to  pages. 


.  V.  Heaton,  501. 

Ry.  Co.  V.Wilson,  339. 

.  V.  Hedges,  184. 

Ry.  Co.  V.  Whitacre,  536. 

.  V.  Herr,  254. 

Ry.  Co.  V.  Xenos,  416. 

.  V.  Hope,  427. 

Raleigh  v.  Cook,  300. 

.  V.  Hixon,  337. 

Ramirez  v.  Murray,  298. 

.  V.  Ireland,  553. 

RandaU  v.  Howard,  323. 

.  V.  Iron  Co.,  267,  352. 

Randon  v.  Toby,  331. 

.  V.  Kassen,  457. 

Rankin  v.  Goddard,  513. 

.  V.  Kelly,  441. 

Rankin  v.  Major,  541. 

.  V.  Kellogg,  427. 

Ransom  v.  Stanbery,  382. 

.  V.  Kerr,  428. 

Rapps  V.  Gottlieb,  541. 

.  V.  Klauber,  534,  335. 

Rathbone  v.  Hooney,  542. 

.  V.  Langendorf ,  458. 

Rathbun  v.  Emigh,  183.   ' 

).  V.  McDaniel,  351. 

Rawark  v.  Lee,  524. 

).  V.  McGown,  521. 

Rawlings  v.  Lambert,  185. 

».  V.  McLiney,  278. 

Raymond  v.  Pritchard,  221. 

).  V.  Metcalf,  488. 

Raymond  v.  Richardson,  398. 

).  V.  Moore,  337,  386. 

Raymond  v.  Sturges,  269. 

).  V.  Morey,  459,  499. 

Read  v.  Lambert,  316. 

).  V.  Mowatt,  289. 

Ready  v.  Summer,  267,  343. 

).  T.  Murphy,  535. 

Redfield  v.  Haight,  451. 

).  V.  Nolthenius,  536. 

Redmond  v.  Coffin,  518. 

).  V.  Owen,  202. 

Reed  v.  Calderwood,  368. 

).  V.  Packet  Co.,  523. 

Reed  v,  Chilson,  495. 

).  V.  Pape,  298. 

Reed  v.  Mayor,  299. 

).  V.  Parks,  376. 

Reed  v.  Northfield,  386. 

).  V.  Paulk,  430. 

Reed  v.  Norton,  552. 

).  V.  Peoples,  438,  522. 

Reed  v.  The  Evergreens,  541. 

).  V.  Perry  Co.,  548. 

Reeder  v.  Sayre,  298. 

).  V.  City  of  Philadelphia,  412. 

Reeve  v.  Fraker,  311. 

).  V.  Pierce,  337. 

Reid  V.  Boyd,  380. 

).  V.  Power,  501. 

Reid  V.  Stevens,  322. 

).  V.  Proples,  473. 

Reid  V.  The  Evergreens,  488. 

).  V.  Ey.  Co.,  226,  514. 

Reilly  v.  Bucker,  252. 

).  V.  Rutherford,  535. 

Reilly  v.  Ringland,  523. 

).  V.  Scammon,  465. 

Reinheimer  v.  Carter,  324. 

).  V.  Scoggin,  340,  342. 

Reitenhaugh  v.  Ry.  Co.,  162. 

).  V.  Schuyler,  284. 

Remillard  v.  Prescott,  399. 

).  V.  Shanklin,  266. 

Renan  v.  Williams,  397, 

).  V.  Skillman,  521. 

Renshaw  v.  Taylor,  542. 

).  V.  Stewart,  341. 

Reynolds  v.  Dunkirk  &  S.  L.  Ry. 

).  V.  Stanford,  427. 

Co.,  322. 

).  V.  Supervisors,  221. 

Reynolds  v.  Kennedy,  530. 

).  V.  Traube,  471. 

Reynolds  v.  Roudabush,  219. 

3.  V.  Vancant,  278. 

Reynolds  v.  Stanbury,  518. 

X  V.  Walker,  395. 

Reynolds  v.  Stockton,  492,  496,  514. 

3.  V.  Washbiurn,  206,  390,  535. 

Rheinhart  v.  State,  375. 

xl 


TABLE  OF  CASES. 


The  references  are  to  pages. 
Alameda,  340,  343,  377, 


Rhoda  V 
510. 
Rhode  Island  v.  Mass.,  501. 
Rhodes  v.  Gunn,  392. 
Rhodes  v.  Pray,  189. 
Rice  V.  Coolidge,  198. 
Rice  V.  O'Connor,  240. 
Rice  V.  Savery,  441. 
Richards  v.  Fanning,  293. 
Richardson  v.  Crandall,  413. 
Richardson  v.  Hittle,  221. 
Richardson  v.  Smith,  363. 
Richer  v.  Freeman,  405. 
Richtmeyer  v.  Richtmeyer,  288. 
Richwine  v.  Presb.  Ch.,  200. 
Ricketson  v.  Richardson,  233. 
Ridder  v.  Whitlock,  351. 
Riddle  v.  Parke,  249,  250,  346. 
Riddle  v.  Roll,  200. 
Ridenour  v.  Mayo,  269. 
Rider  v.  Robbins,  183. 
Rinehart  v.  Long,  198,  464. 
Ripley  v.  ^tna  Ins.  Co.,  456. 
Roback  v.  Powell,  272. 
Robbins  v.  Deverill,  321. 
Robbins  v.  Harvey,  329. 
Robbins  v.  Lincoln,  363,  366. 
Roberts  v.  Johannas,  210,  278. 
Roberts  v.  Lovell,  357. 
Roberts  v.  Marchant,  483. 
Roberts  v.  Treadwell,  338,  347. 
Robertson  v.  Perkins,  341,  550. 
Robertson  v.  Sturth,  513. 
Robinson  v.  Fitch,  344,  523. 
Robinson  v.  Flint,  184. 
Robinson  v.  Gary,  536. 
Robinson  v.  Greenville,  351. 
Robinson  v.  Hatch,  528. 
Robinson  v.  Howard,  515. 
Robinson  v.  Prescott,  514. 
Robinson  v.  Ry .  Co. ,  535. 
Robinson  v.  Rice,  265. 
Robinson  v.  Willoughby,  298,  299. 
Robrecht  v.  Marling,  278. 
Robson  V.  Comstock,  353. 
Roddy  V.  Ry.  Co.,  425. 
Roe  v.  Roe,  346. 


Roeder  v.  Brown,  338. 
Roehring  v.  Huebschmann,  469. 
Roemer  v.  Striker,  390. 
Rogers  v.  Dutt,  24,  404. 
Rogers  v,  Grosnell,  441. 
Rogers  v.  Milwaukee,  168. 
Rogers  v.  Parham,  473. 
Rogers  v.  Rogers,  555. 
Rogers  v.  State,  376. 
Rolin  v.  Steward,  407. 
Rollins  V.  Forbes,  195. 
RoUins  V.  Lvmaber  Co.,  367. 
Rose  V.  Hawley,  515,  516. 
Ross  V.  Mather,  269. 
Ross  V.  Sagdbeer,  315. 
Rost  V.  Harris,  531. 
Rowe  V.  Baccigalluppi,  284. 
Roys  V.  Lull,  381. 
Royse  v.  Reynolds,  231. 
Rozencrantz  v.  Rogers,  153. 
Rubush  v.  State,  341. 
Rue  High's  Appeal,  418. 
Rugh  V.  Ottenheimer,  398. 
Ruggles  V.  Gatton,  322. 
Ruggles  V.  Sand,  309. 
Rugers  v.  Odell,  380. 
Rumsey  v.  Lake,  288,  491. 
Rumsey  v.  Robinson,  240. 
Rush  V.  Rush,  203,  204. 
Russell  V.  Bell,  440. 
Russel  V.  Chambers,  265. 
Russell  V.  Mayor,  445. 
Rutledge  v.  Corbin,  487. 
Rutledge  v.  Vanmeter,  298. 
Ryan  v.  Bank  of  Neb.,  374. 
Ryan  v.  Curran,  375. 
Ryan  v.  Jacques,  351. 
Ryan  v.  Ry.  Co. ,  295,  428. 
Ryan  v.  Tomlinson,  325. 

s. 

Sac  County  v.  Hobbs,  350. 
Sackett  v.  Havens,  366. 
Sagory  v.  Ry.  Co.,  299,  332. 
St.  John  V.  Griffith,  265,  385. 
St.  Paul  Div.  v.  Brown,  537. 


TABLE  OF  CASES. 


xU 


The  references  are  to  pages. 


Saline  Co.  v.  Sappington,  202. 
Salladay  v.  Dodgeville,  534. 
Samminiss  v.  Wilhelm,  338. 
Sampson  v.  Hodinott,  406. 
Sanborn  v.  Rodgers,  323. 
Sandeen  v.  Ry.  Co.,  440. 
Sands  v.  Calkins,  295,  296. 
Sands  v.  St.  John,  328,  347. 
Sands  v.  Smith,  420. 
Sangster  v.  Butt,  283. 
Sappington  v.  Ry.  Co.,  290. 
Sarchet  v.  Sarchet,  235. 
Sargent  v.  Ry.  Co.,  370,  371,  374. 
Saulsbury  v.  Alexander,  353,  554. 
Saumby  v.  Rochester,  535. 
Sauer  v.  Steinbauer,  195. 
Saville  V.  Ins.  Co..  506. 
Sawyer  v.  Warner,  209. 
Sawyer  v.  Woodbury,  515. 
Sayers  v.  Bank,  552. 
Sayles  v.  Tibbitts,  516. 
Sayre  v.  Cushing,  366. 
Scaggs  V.  President,  etc.,  535. 
Scantlin  v.  Allison,  480. 
Scarborough  v.  Smith,  177,  178. 
Schaetzel  v.  G.  F.  M.  Ins.  Co.,  363. 
ScheU  V.  Leland,  162. 
Schenck  v.  Butsch,  464. 
Schenk  v.  Evoy,  208. 
Scheer  v.  Keovvn,  531. 
Schermerhorn  v.  VanAUen,  394. 
Schermerhorn    v.     Schermerhorn, 

553. 
Schluler  v.  Bow.  Sav.  Bank,  341. 
Schneider  v.  Hosier,  298. 
Schnier  v.  Fay,  478. 
Schofield  v.  Ferrei^s,  171. 
Scholfield  V.  Settley,  552. 
School  Dist.  V.  Benson,  392. 
School  Dist.  T.  Griner,  271. 
School  Dist.  V.  Mclntire,  290. 
School  Tp.  V.  Citizens'  Bank,  376. 
Schreckengast  v.  Ealy,  299. 
Schrock  v.  Cleveland,  159. 
Schulenberg  v.  Harriman,  391. 
Schultz  V.  Winter,  487. 
Sehwarz  v.  Oppold,  271. 


Schweickhart  v.  Stuewe,  474. 

Schweizer  v.  Weiber,  440. 

Scofield  V.  Bank,  267. 

Scott  V.  Godwin,  485. 

Scott  V.   Shepherd,  405,  428,  436, 

427,  434. 
Scott  V.  State,  289. 
Scott  V.  Tyler,  450. 
Scott  V.  Zartman,  377. 
Scotten  V.  Randolph,  376. 
Scovill  V.  Glassner,  298. 
Scoville  V.  Barney,  363. 
Seager  v.  Burns,  538. 
Seaman  v.  Seaman,  315. 
Seawright  v.  Coffman,  377. 
Secor  V.  Sturgis,  470. 
Secrist  v.  Petty,  336. 
Seeley  v.  Thomas,  329. 
Sell  V.  Miller,  419. 
Selma  Co.  v.  Lacy,  408. 
Semple  v.  Lee,  484,  542. 
Sentenis  v.  Ladew,  494. 
Severin  v.  Keppel,  412. 
Sewall  V.  Valentine,  341. 
Sewell  V.  Sewell,  419. 
S.  M.  Co.  V.  Wray,  286. 
Seymour  v.  Ry.  Co.,  280,  281,  328w 
Seymour  v.  Shea,  557. 
Shacker  v.  Ins.  Co,,  493. 
Shafer  v.  Bronenberg,  221,  393. 
Shafer  v.  Hockheimer,  495. 
Shaffer  v.  McKee,  18.  412. 
Shahan  v.  Tallman,  351. 
Shank  v.  Teeple,  323,  325. 
Shannon  v.  Shannon,  419. 
Sharpe  v.  Sharpe,  547. 
Shaver  v.  Brainard,  489. 
Shaw  V.  Dutcher,  289. 
Shaw  V.  Tobias,  386. 
Shawhan  v.  Van  Nest,  508. 
Shay  v.  Thompson,  455. 
Shearman  v.  West.  Stage  Co.,  408. 
Shed  V.  Augustine,  247. 
Shedd  V.  Moran,  408. 
Sheehy  v.  Mandeville,  512. 
Sheets  V.  Baldwin's  Admr..  299,  332. 
Sheffill  V.  Van  Densen,  410. 


xlii 


TABLE  OF  CASES. 


The  references  are  to  pages. 


Shelden  v.  Newton,  496. 
Sheldon  v.  Adams,  295. 
Sheldon  v.  Hopkins,  380. 
Sheldon  v.  Hoy,  153,  158,  159. 
Sheldon,  Hoyt,  &  Co.  v.  Middleton 

363,  365. 
Shelly  V.  Varnarsdoll,  233. 
Shelton  v.  Alcox,  399. 
Shepard  v.  Ry.  Co.,  190. 
Sheridan  v.  Jackson,  339. 
Sheridan  v.  Mayor,  313. 
Sherlock  v.  Ailing,  214,  461. 
Shermon  v.  Osborn,  365. 
Sherwood  v.  Saxton,  323. 
Shields  v.  Yonge,  408. 
Shook  V.  Fulton,  198,  279. 
Shook  V.  Singer  Mfg.  Co.,  221. 
Shore  v.  Smith,  178. 
Short  V.  Stone,  416. 
Short  V.  Stotts,  519. 
Shropshire  v.  Conrad,  233. 
Shroyer  v.  Miller,  527. 
Shroyer  v.  Richmond,  278. 
Shugart  v.  Egan,  458. 
Shuler  v.  Millsaps,  519. 
Sibley  V.  Pine  Co.,  412. 
Sidenberg  v.  Ely,  399. 
Sieberling  Co.  v.  Dujardin,  202. 
Silver  Lake  Bk.  v.  Harding,  514. 
Simar  v.  Canaday,  278. 
Simmons  v.  Green,  249,   251,  267, 

346,  395,  509. 
Simmons  v.  Kayser,  221. 
Simms  v.  Richardson,  541. 
Simons  v.  Green,  378. 
Simpkins  v.  Ry.  Co.,  229. 
Simpson  v.  Cochran,  511. 
Simpson  v.  Greeley,  271. 
Simpson  v.  McArthur,  531. 
Sims  V.  Radcliffe,  330. 
Sinclair  v.  Fitch,  277. 
Sinker  v.  Floyd,  311. 
Sisco  V.  Ry.  Co.,  535. 
Siter  V.  Jewett,  212,  217,  ^43,  345. 
Skinner  v.  McDonall,  324. 
Skinner  v.  Stewart,  285. 
Skoglund  V.  St.  Ry.  Co.,  466. 


Slack  V.  Heath,  367. 

Slagle  V.  Hoover,  539. 

Slauson  v.  Englehart,  303. 

Sloan  V.  McDowell,  284. 

Sloan  V.  Waugh,  331. 

Slocum  V.  McBride,  156. 

Small  V.  Owings,  322. 

Smith  V.  Brown,  316,  378. 

Smith  V.  Cudworth,  548. 

Smith  V.  Curtis,  501. 

Smith  V.  Douglas,  186. 

Smith  V.  Fah.,  321. 

Smith  V.  Hall,  221,  393. 

Smith  V.  Holmes,  398. 

Smith  V.  Hoover,  277,  495. 

Smith  V.  Lincoln,  329. 

Smith  V.  Lisher,  396. 

Smith  V.  Little,  182. 

Smith  V.  McLean,  374,  523. 

Smith  V.  Nelson,  208,  357. 

Smith  V.  Richmond,  328,  330. 

Smith  V.  Ross,  154. 

Smith  V.  Sewing  Machine  Co.,  16C, 

341. 
Smith  V.  Sherman,  519. 
Smith  V.  Smith,  302,  440,  553. 
Smith  V.  Stewart,  444. 
Smith  V.  Tallapoosa,  334. 
Smith  V.  Warren  Co.,  292. 
Smith  V.  Wooding,  444. 
Snook  V.  Davis,  524. 
Snyder  v.  Snyder,  186. 
Snyder  v.  Voorhes,  285. 
Snyder  v.  Wise,  514. 
Society  V.  Varick,  155. 
Solomon  v.  Hughes,  335. 
Somerville  v.  Stewart,  219. 
Sons  of  Temp.  v.  Brown,  316. 
Sorrells  v.  McHenry,  316. 
Souch  V.  Strawbridge,  325. 
Souter  V.  Maguire,  310,  386. 
Sparhawk  v.  Ry.  Co.,  410. 
Sparks  v.  Heritage,  392. 
Spear  v.  Downing,  351. 
Spear  v.  Mayor,  304. 
Spears  v.  Ward,  183. 
Specklemeyer  v.  Dailey,  380. 


TABLE  OF  CASES. 


vlii^ 


The  reference  are  to  pages. 


Spellman  v.  Weider,  291,  510. 
Spence  v.  Ins.  Co.,  162,  195,  197, 

270. 
Spencer  v.  South  wick,  358. 
Spencer  v.  VanCott,  284. 
Sperry  v.  Spaulding,  253. 
Spieres  v.  Parker,  333. 
Spies  V.  Roberts,  267,  315. 
Spooner  v.  Keeler,  529. 
Spoors  V.  Coen,  496,  497,  500. 
Sprague,  Adm.  v.  Childs,  244. 
Springer  v.  Dwyer,  353,  354. 
Springer  v.  Kleinsorge,  322. 
Springfield  v.  Spence,  453. 
Springsteed  v.  Lawson,  184. 
Stafford  v.  The  M.  J.  Assn.,  165. 
Stanbach  v.  Rexford,  391. 
Stanbury  v.  Kerr,  292. 
Stanglein  v.  State,  334. 
Stanton  v.  Kenrick,  297,  516. 
State  V.  Bath,  270. 
State  V.  Board,  547. 
State  V,  Casteel,  344,  350,  351. 
State  V.  Chad  wick,  270. 
State  V.  Coghlen,  547,  548. 
State  V.  Evans,  439. 
State  V.  Jackson,  337. 
State  V.  Leiber,  337, 
State  V.  Linkhan,  410. 
State  V.  Martin,  154. 
State  V.  Murfreesboro,  336. 
State  V.  Newman's  Exr.,  412. 
State  V.  Oddle,  335. 
State  V.  Patton,  157. 
State  V.  Powers,  337. 
State  V.  Rood,  558, 
State  V,  Ruth,  204. 
State  V.  Simpkins,  295. 
State  V.  Spencer,  281. 
State  V.  Stapp,  333. 
State  V.  Tel.  Co.,  155,  156, 
State  V,  Wenzel,  344,  350, 
State  V.   "Williams,   217,   249,   251. 

346,  395. 
State  ex  rel.  v.  Helmes,  417. 
Steamship  Co,  v,  Otis,  300. 
Steamship  Co.  v.  Voorhis,  548. 


Steams  v.  Dubois,  186,  187,  189. 
Stebbins  v.  Palmer,  519. 
Steele  v.  PhiUips,  529, 
Steele  v.  Russell,  212. 
Stein  V.  Rose,  470. 
Stenton  v,  Jerome,  506. 
Stephen  v.  State,  154. 
Stephens  v.  Magor,  192,  195. 
Stephens  v,  Murton,  544. 
Stephenson  v.  Doe,  337. 
Stern  A.  &  C.  Co.  v.  Mason,  391. 
Stevens  v.  Able,  233. 
Stevens  v.  Brooks,  298,  489. 
Stevens  v,  Campbell,  542. 
Stevens  v.  Dunbar,  515, 
Stevens  v.  Thompson,  363. 
Stevenson  v,  Morris,  447. 
Stewart  v.  Budd,  363, 
Stewart  v.  Carter,  192,  194. 
Stewart  v,  Hoag,  216. 
Stewart  v,  Johnson,  484. 
Stewart  v.  State,  155. 
Stier  v,  Oskaloosa,  336. 
StilweU  V,  Adams,  374. 
Stockett  V.  Watkins,  444. 
Stocking  V.  Burnett,  291. 
Stockwell  V.  Wager,  284. 
Stoddard  v.  Thompson,  481. 
Stoddard  v,  Treadwell,  367. 
Stodghillv.  Ry,  Co.,  472, 
Stokes  V,  Saltenstall,  430. 
Stone  V,  Bird,  523, 
Stone  V,  Dennison,  325. 
Stone  V,  Ry.  Co.,  459. 
Storrs  V.  Flint,  300. 
Stoughton  V,  Mott,  500, 
Stout  V,  Folger,  451, 
Stout  V.  St.  L.  Tribune  Co.,  373. 
Stout  V.  Wren,  455. 
Stowell  V.  Chamberlain,  515. 
Stowell  V.  Eldred,  241. 
Stowell  V.  Lincoln,  407, 
Stowell  V,  Zouch,  347. 
Strader  v.  Graham,  418. 
Strang  v.  Beach,  544. 
Strange  v.  Manning,  278. 
Stratton  v.  Allen,  289,  523. 


xliv 


TABLE  OF  CASES. 


Uie  references  are  to  pages. 


Strauss  v.  Meertief ,  474. 
Strauss  v.  Meyer,  526. 
Strickland  v.  Fitzgerald,  310, 
Stringfellow  v.  Curry,  444. 
Stringham  v.  Supervisors,  503. 
Strobe  v.  Downer,  497. 
Strong  V.  Strong,  302. 
Strother  v.  Browning,  440. 
Struble  v.  Malone,  517. 
Strughan  v.  Inge,  162. 
Stucker  v.  Stucker,  541. 
Studstill  V.  State,  154. 
Stultz  V.  Dickey,  393. 
Sturgess  v.  Burton,  178,   185,  194, 

280,  328. 
Suman  v.  Springate,  322. 
Sunman  v.  Brewin,  528. 
Supervisors  v.  Decker,  298,  299. 
Supervisors  v.  O'Malley,  186. 
Supervisors  v.  Van  Stralen,  241. 
Supply  Ditch  Co.  v.  Elliott,  358. 
Sussdorf  V.  Schmidt,  873. 
Sutliff  V.  Atwood,  444, 
Swan  V.  Iron  Co. .  276. 
Swank  v.  Hufnagle,  386,  419, 
Sweeny  v.  Ry.  Co.,  533. 
Sweet  V.  Brown,  549. 
Sweet  V.  Ingerson,  184. 
Sweet  V.  Mitchell,  298. 
Sweet  V,  Tuttle,  241, 
Swensen  v,  Cresop,  516, 
Swenson  v.  Plow  Co. ,  541. 
Swift  V,  Ellsworth,  221. 
Swinney  v.  Nave,  468. 
Sylvis  V.  Sylvis,  217,  249,  346. 

T. 

Talbot  V.  Bowen,  322. 
Talcott  V.  Henderson,  473. 
Tanguay  v.  Felthousen,  542. 
Tank  Line  Co.  v.  Collier,  387. 
Tappan  v.  Evans,  539. 
Tarbox  v.  Gorman,  284. 
Tarbox  v.  Supervisors,  328. 
Tate  V.  Ry.  Co.,  487. 
Taylor  v.  Barclay,  336. 


Taylor  v.  Barron,  514. 

Taylor  v.  Cole,  173,  218. 

Taylor  v.  Ins.  Co..  200. 

Taylor  v.  Merrill,  322,  333. 

Taylor  v.  Monroe,  448. 

Taylor  v.  Neri,  433. 

Taylor  v.  Patterson,  321. 

Taylor  v.  Ry.  Co.,  179,  375. 

Taylor  v.  Salmon,  488. 

Taylor  v.  Whitehead.  445. 

Temple  v.  State,  336. 

Templeman  v.  Riddle,  393. 

Tennant  v.  Pfister,  271,  278,  293. 

Tenney  v.  Townsend,  380. 

Tenor  V.  Ry.  Co.,  234, 

Terrill  v.  Jennings.  366. 

Terry  v.  Calnan,  540. 

Terry  v.  Munger,  98. 

Terwilliger  v.  Wands,  411,  536. 

Tew  V.  Jones,  444. 

The  C.  &  W.  Coal  Co.  v.  Liddell, 

322,  323. 
The  Holladay  Case,  366. 
The  King  v.  Brereton,  356. 
The  Scotia,  334. 
Thomas  v.  Allen,  451. 
Thomas  v.  Desmond,  311. 
Thomas  v.  Hatch,  301. 
Thomas  v.  Hammond,  323. 
Thomas  v.  Rumsey,  487, 
Thomas  v.  Winchester,  428, 437, 479. 
Thompson  v.  Barkley,  529. 
Thompson  v.  Elliott,  156. 
Thompson  v.  Erie  Ry.  Co.,  262. 
Tliompson  v.  Franks,  354. 
Thompson  v.  Greenwood,  241. 
Thompson  v.  Halbert,  219. 
Thompson  v.  Kessell,  230. 
Thompson  v.  Minford,  188,  386. 
Thompson  v.  Morton,  501. 
Thompson  v.  Munger,  358. 
Thompson  v.  Ry.  Co. ,  535. 
Thompson  v.  Sanders,  228. 
Thompson  v.  Sweetser,  392. 
Thompson  v.  Thompson,  249,  439, 

441. 
Thompson  v.  Whitman,  496. 


TABLE  OF  CASES. 


xlv 


The  references  are  to  pages. 


Thornton  v.  Strauss,  439. 
Throop  V.  Sherwood,  505. 
Tibbettsv.  Ry.  Co.,  459. 
Tiernan  v.  Woodruff,  299. 
Tiffany  v.  Bowerman,  301,  303. 
TiflSn  V.  McCormack,  459. 
Tightmyer  v.  Mongold,  385. 
Tilson  V.  Clark,  528. 
Timlow  V.  Ry.  Co.,  334. 
Tunmons  v.  Dunn,  227. 
Tinsley  v.  Tinsley,  230. 
Tisdale  v.  Moore,  202. 
Tisdale  v.  Norton,  431. 
Tisen  v.  Hanford,  371. 
Todd  V.  Neal,  422. 
Toledo,  etc.,  Ry.  Co.  v.  Pence,  833. 
Tolmie  v.  Dean,  158. 
Tomlinson  v.  Derby,  448. 
Tomlinson  v.  Warner,  530. 
Tooker  v.  Amoux,  338,  371. 
Tootle  V.  Clifton,  553. 
Tootle  V.  Wells,  286,  504. 
Towell  V.  Pence,  278. 
Towner  v.  Tooley,  489. 
Townsend  v.  Campemowne,  483. 
Townsend  v.  Jemison,  331. 
Townsend  v.   Rackham,   441,  442, 

479. 
Townshend  v.  Norris,  351. 
Towsley  v.  Moore,  329. 
Transp.  Co.  v.  Boggiano,  233. 
Trapnall  v.  Brown,  322. 
Trapnall  v.  Hill,  503. 
Trask  V.  Ry.  Co.,  465. 
Travis  v.  Barger,  396. 
Treadwell  v.  Corars.,  365,  366. 
Treasurer  v.  Hall,  338. 
Trimble  v.  Doty,  553. 
Tripp  V.  Bishop,  325. 
Trippe  v.  DuVal,  301. 
Trogden  v.  Deckard,  531. 
Trott  V.  Sarchett,  289. 
Trotter  V.  Comrs.,  233. 
Trowbridge  v.  Forepaugh,  179. 
Trow  City  Directory  v.  Curtin,  340. 
Truesdeil  v.  Bourke,  552. 
Truesdell  v.  Rhodes,  284,  286. 


Truitt  V.  Baird,  270. 
Trumbo  v.  Finley,  297. 
Truscott  V.  Dole,  203,  355. 
Trustees,  etc.  v.  Odlin,  159,  270, 342, 

343. 
Tubbs  V.  Caswell,  289. 
Tucker  v.  Edwards,  324. 
Tucker  V.  Ins.  Co.,  232. 
Tucker  v.  Lovejoy,  338. 
Tulley  V.  Harloe,  523. 
Turner  v.  Althaus,  181. 
Turner  v.  Roby,  380. 
Turner  v.  Simpson,  252. 
Turner  v.  White,  309,  343. 
Turnow  v.  Hochstadter,  300,  326. 
Turnpike  Co.  v.  Baldwin,  535. 
Turnp.  Co.  v.  Humphrey,  266. 
Turnpike  Co.  v.  Sears,  386. 
Tutein  v.  Hurley,  434. 
Tuttle  V.  Hannegan,  345. 
Tutty  V.  Alewin,  526. 
Tweedy  v.  Jarvis,  154. 
Twomley  v.  Ry.  Co.,  430. 
Tyson  v.  McGuineas,  481. 

u. 

Union  Bank  v.  Bush,  344. 

Union  Bank  v.  Mott,  473. 

Union  Ins.  Co.  v.  McGookey,  347, 

378. 
Union  Nat.  Bk.  v.  Bassett,  332. 
United  States  v.  Beebe,  329. 
United  States  v.  Boyd,  292. 
United  States  v.  Clarke,  276,  380. 
United  States  v.  Knight,  329. 
United  States  v.  Morris,  367. 
United  States  v.  Ordway,  397. 
United  States  v.  Reynes,  337. 
Upington  v.  Oviatt,  487,  489. 
Upton  V.  Else,  330. 
Upton  &  Co.  V.  Julian  &  Co.,  223. 
Uther  V.  Rich,  339. 
Utlca  Ins.  Co.  v.  Bloodgood,  331. 

T. 

Valentine  v.  Lunt,  357. 


xlvi 


TABLE  OF  CASES. 


77ie  references  are  to  pages. 


VanAlstyne  v.  Norton,  345,  395. 
Van  Aukin  v.  WestfaU,  411,  527. 
VanBrunt  v.  Mather,  186,  189. 
Vandenburgh  v.  Truax,  426. 
Van  De  Sande  v.  Hall,  231. 
VanDyke  v.  Rule,  298. 
Van  Dyke  v.  Maguire,  210. 
Van  Eman  v.  Stanchfield,  314. 
\7an  Fossen  v.  State,  418,  419. 
VanGieson  v.  VanGieson,  363. 
VanMaren  v.  Johnson,  299. 
Van  Orman  v.  Spafford,  518. 
Van  Schaick  v.  Winne,  316. 
Van  Schiack  v.  Ry.  Co.,  441. 
Van  Steenburgh  v.  Tobias,  179. 
Van  Tassel  v.  Capron,  525. 
Van  Thornily  v.  Peters,  544. 
VanVUet  v.  OHn,  516. 
VanWert  v.  Webster,  339. 
Van  Wyck  v.  Guthrie,  529. 
Vassear  v.  Livingston,  226,  236. 
Vaughan  v.  Howe,  256. 
Vaupell  V.  Woodward,  324, 
Vavasour  v.  Ormrod,  333. 
Veeder  v.  Baker,  499. 
Veliev.  Ins.  Co.,  186,  188. 
Verhein  v.  Schultz,  515. 
Vibbard  v.  Roderick,  189. 
Vibert  v.  Frost,  283. 
Vicars  v.  Wilcocks,  526. 
Viles  V.  Bangs,  278. 
Vincent  v.  Starks,  154,  347. 
Volkening  v.  DeGraaf ,  506. 
Vooght  v.  Winch,  518. 
Vore  V.  Woodford,  281. 
Vose  V.  Woodford,  292. 
Vroom  V.  Van  Home,  418. 

Wachter  v.  Quenzer,  396. 
Wade  v.  Howard,  516. 
Wade  V.  Kalbfleish,  519. 
Waffle  V.  Goble,  333. 
Waffle  V.  Short,  504. 
Wager  v.  Ide,  391, 
Waggoner  v.  Listen,  345,  395, 


Wagner  v.  Nagel,  187,  501. 

Wagoner  v.  Wilson,  350. 

Waits  v.  McClure,  271. 

Wakeman  v.  Robinson,  24,  405. 

Walcott  V.  Studebaker,  552, 

Waldsmith  v.  Waldsmith,  338. 

Walker  v.  Deaver,  271. 

Walker  v.  Duncan,  440. 

Walker  v.  B.  R.  of  Miss.,  333. 

Walker  v.  Ins.  Co.,  225,  236. 

Walker  v.  Johnson,  173,  333. 

Walker  v.  Kynett,  292. 

Walker  v.  Locke,  323, 

Walker  v.  Mauro,  478, 

Walker  v.  McKay,  226. 

Walker  v.  Popper,  280, 

Walker  v.  Richards,  321. 

Wall  V.  Galvin,  375. 

Wall  V.  Water  Works  Co.,  362,  36a 

Wallace  v.  Eaton,  285. 

Wallace  v.  Wilson,  320. 

Walsh  V.  Cattenburgh,  186. 

Walsh  V.  Durkin,  284. 

Walsh  V.  Kattenbui-gh,  321, 

Walsh  V.  Ry.  Co.,  535. 

Walsh    V.   Trustees    N.    Y.    &    B. 

Bridge,  336. 
Walter  v.  Bennett,  301. 
Walter  v.  Fowler,  261. 
Walter  v.  Hartwig,  316. 
Walter  v.  Radclifife,  332. 
Walters  v.  Ins.  Co.,  188,  286. 
W.  &  K.  Bridge  Co.  v,  Wyandotte, 

487. 
Wanzer  v.  Self,  556, 
Ward  V.  Clay,  376. 
Ward  V.  Kalbfleisch,  295. 
Ward  V.  Moorey,  292. 
Ward  V.  Polk,  219. 
Ward  V.  Ward,  286. 
Warder  v.  Baldwin,  398, 
Ware  v.  Reese,  187. 
Warfield  v.  Gardner's  Admr.,  Ifcvj;^ 
Waring  v.  Waring,  490. 
Warner  v,  Myrick,  505. 
Warner  v.  Nelligar,  265. 
Warner  v.  Warner,  204,  261. 


TABLE  OF  CASES. 


xlvii 


TTie  references  are  to  pages. 


Warren  v.  Crane,  456. 

Warren  v.  Walker,  331. 

Warrick,  etc.,   Co.    v.   Hougland, 

547. 
Warwick  v.  Cooper,  520. 
Wash.  Tp.  V.  Bouney,  278. 
Washer  v.  BuUitt  Co.,  295. 
Watchter  v.  Quenzer,  318,  528. 
Waterman  v.  Lawrence,  496. 
Waterman  v.  Sprague,  329. 
Watkins  v.  Brunt,  376. 
Watson  V.  Brown,  292. 
Watson  V.  Bushmore,  299. 
Watts  V.  Boom.  Co.,  493. 
Wayland  v.  Tysen,  262. 
Weaver  v.  Barden,  320. 
Weaver  v.  Carnahan,  220. 
Weaver  v.  McElhenon,  154 
Webb  V.  BidweU,  339,  341. 
Webb  V.  Cecil,  487. 
Webb  V.  Nickerson,  219. 
Webb  V.  Ry.  Co.,  427. 
Webb  V.  Smith,  315,  316. 
Webber  v.  Williams  CoUege,  331. 
Weber  v.  Ry.  Co.,  214,  460,  461. 
Webster  V.  Bond,  217. 
Webster  v.  Cont.  Ins.  Co.,  386. 
Webster  v.  Tibbitts,  280. 
Weed  V.  Burt,  508. 
Weeks  v.  Cornwall,  279. 
Wheeler,  etc.,  Co.  v.  Worrall,  347. 
Weide  v.  Porter,  385. 
Welder  v.  Overton,  162. 
Welch  V.  Piatt,  198. 
Weller  v.  Eames,  450. 
Weller  v.  Hersee,  315. 
Welles  V.  Webster,  374. 
Wellington   v.   Kerosene  Oil  Co., 

428. 
Wellington  v.  SmaU,  405. 
Wells  V.  Cook,  427. 
Wells  V.  Stewart,  226. 
Wells  V.  Yates,  544. 
Wellsville  v.  Geisse,  393. 
Wentworth  v.  Wentworth,  323. 
Werk  V.  Christie,  262. 
West  V.  Imp.  Co.,  182,  183. 


Westcott  V.  Brown,  394. 
W.  U.  Tel.  Co.  V.  Reed,  354. 
W.  U.  Tel.  Co.  V.  Young,  354. 
Weston  V.  Limiley,  247,  529. 
Westphal  v.  Henney,  292. 
Wesy  V.  Hayes,  376. 
Wetherell  v.  Clerkson,  526. 
Wetmore  v.  San  Francisco,  314, 38t 

393. 
Wheatley  v.  Strobe,  478. 
Wheeler  &  Appleton's  Case,  411. 
Wheeler  v.  Billings,  211,  315. 
Wheeler  v.  Bluckman,  516. 
Whelan  v.  Kinsley,  332. 
Whetstone  v.  Beloit,  etc.,  Co.,  191, 
White  V.  Allen,  265. 
White  V.  Culver,  297. 
White  V.  Freese,  203. 
White  V.  Lockwood,  516. 
White  V.  Lyons,  201. 
White  V.  Mayor,  296. 
White  V.  Phelps,  314,  478. 
White  V.  Smith.  364. 
White  V.  Spencer,  272. 
White  V.  Stanley,  314. 
White  V.  Tucker,  531. 
Whitford  v.  Company,  408. 
Whiting  V.  Eichelberger,  303. 
Whitney  v.  Clarendon,  471. 
Whitney  v.  Ry.  Co.,  186,  187. 
Whittem  v.  State,  154. 
Whittemore  v.  Weiss,  529. 
Whitworth  v.  Malcomb,  375. 
Whyte  V.  Gibbes,  501. 
Wicker  v.  Hoppock,  450. 
Wiggin  V.  Ry.  Co.,  522. 
Wiggins  V.  Sickel,  473. 
Wightman  v.  Coates,  519. 
Wilcox  V.  Cohn,  315,  469. 
Wilcox  V.  Lee,  515. 
WUcox  V.  McCoy,  171,  448,  464.. 
Wilder  v.  Boynton,  240. 
Wilder  v.  DeCon,  221. 
Wildman  v.  Rider,  499. 
Wiles  V.  Suydam,  180,  279,  28(t 
Wilhite  V.  Hamrick,  289. 
Wilkins  v.  Moore,  347. 


xlviii 


TABLE  OF  CASES. 


The  references  are  to  pages. 


Wilkins  v.  Stidger,  373. 
Wilkinson  v.  Applegate,  347. 
Wilkinson  v.  Green,  542. 
WiUard  v.  Holmes,  530. 
Willard  v.  Reas,  286. 
Willard  v.  Stone,  520. 
Williams  v.  Bankhead,  482. 
Williams  v,  Esling,  407. 
WilUams  v.  Flight,  185. 
Williams  v.  Healey,  316. 
Williams  v.  Hitzie,  155. 
WiUiams  v,  Jones,  512. 
WiUiams  v.  Lowe,  184,  188,  386. 
Williams  v.  McGrade,  284. 
Williams  v.  Meeker,  542. 
Williams  v.  Mostyn,  406. 
Williams  v.  Norton,  314,  478. 
Williams  v.  Randon,  299. 
Williams  v.  Ritchey,  154. 
Williams  v.  Rochester,  548. 
WiUiams  v.  Slote,  201. 
Willoughby  v.  Thomas,  474. 
Wills  V.  Wills,  382. 
Willson  V.  Cleveland,  245. 
Wilson  V.  Jackson,  518. 
WUson  V.  Ray,  515. 
Wilson  V.  Poole,  206. 
Wilson  V.  Ry.  Co.,  430. 
Wilson  V.  Runyon,  526. 
Wilson  V.  Smith,  179,  187. 
Wilson  V.  Stilwell,  451,  452. 
Wilson  V,  Wilson,  141. 
Winchell  v,  Noyea.  440. 
Windbiel  v.  Carroll,  454. 
Wing  V.  Davis,  541. 
Wing  V.  Dugan,  366. 
Winne  v.  Col.  Spr.  Co.,  315. 
Winona  v.  Burke,  335. 
Win.  Lake  Co.  v.  Yoiing,  337. 
Winterbottom  v.  Wright,  424,  425. 
Winterburn  v.  Brooks,  409. 
Winters  v.  Bank,  541. 
Wiscart  v.  Dauchy,  556. 
Wisconsin  v.  Pelican  Ins.  Co.,  380. 
Wisner  v.  Ocumpaugh,  217. 
Wiswell  v.  Teft,  322. 
Wiswell  V.  The  Cong.  Ch.,  241, 353 


Wolcott  V.  Farlan,  300,  332. 
Wolcott  V.  Standley,  480. 
Wolf  V.  Powner,  559, 
Wolf  V.  Scarborough,  415. 
Wolf  V.  W.  U.  Tel.  Co.,  330. 
Wolfe  V.  Howes,  474,  508. 
Wood  V.  Ostram,  398. 
Wood  V.  Seely,  191. 
Wood  V.  Squires,  548. 
Wood  V.  Wand,  406. 
Woodbury  v.  Deloss,  177. 
Woodman  v.  Saltonstal,  276. 
Woodrufif  V.  Cook,  523. 
Woods  V.  Finnell,  530. 
Woodward  v.  Anderson,  454. 
Woodward  v.  Wood,  541. 
Woodworth  v.  Knowlton,  363,  393. 
Woolen  Mills  Co.  v.  Titvis,  373. 
Wooley  v.  Lyon,  422. 
Woolsey  v.  Trustees,  300. 
Wooster  v.  Lyons,  155. 
Worden  v.  Sharp,  325. 
Work  v.  Cowhick,  325. 
Workman  v.  Campbell,  375. 
Worley  v.  Moore,  295. 
Wormouth  v.  Crainer,  527. 
Wormouth  v.  Hatch,  339,  844,  345. 
Won-all  V.  Munn,  178,  193. 
Wright  V.  Bacheller,  247. 
Wright  V.  Bundy,  484. 
Wright  V.  Butler,  212. 
Wright  V.  Chandler,  467. 
Wright  V.  Compton,  448. 
Wright  V.  Connor,  180, 198, 279, 286. 
Wright  V.  Hawkins,  334,  337. 
Wright  V.  Schmidt,  357. 
Wright  V.  Smith,  278,  279. 
Wright  V.  Wright,  419. 
Wynn  v.  AUard,  458. 
Wynn  v.  Garland,  322. 

Y. 

Yates  V.  Whyte,  214,  460. 
Yik  Hon  v.  Water  Works,  535., 
Young  v.  Duhme  &  Co.,  289. 
Young  v.  Glascock,  391. 


TABLE  OF  CASES. 


xlix 


J%€  references  are  to  pages 

Young  V.  Hichens,  523. 
Young  V.  Marshall,  439, 
Young  V.  Martin,  292,  560. 
Young  V.  Whittenhall,  280. 
Young  V.  Wright,  381. 
Young  V.  Young,  347. 
Y.  M.  C.  Assn.  v.  Dubach,  321. 


z. 

Zabriskie  v.  Smith,  284,  48L 
Zeidler  v,  Johnson,  356. 
Zeig  V.  Ort,  527. 
Zorn  V.  Zom,  286. 


NOTE. — The  references  in  this  work  to  "  Stephen  on  Plead- 
ing "  are  to  Andrews'  edition,  1894,  unless  otherwise 
designated  in  the  reference. 


^ 


i»/G 


^jCjuuch^ 


THE  PEINCIPLES  OF  PLEADING. 


INTRODUCTION. 

1.  The  Objects  of  Litigation. — The  ultimate  end  of  the 
law  is  the  conservation  of  rights.  Compensation  by  way  of 
damages  is  a  subordinate  end,  resorted  to  in  particular  in- 
stances wherein  the  law  has  otherwise  failed  of  complete  pro- 
tection. When  legal  rights  are  not  invaded,  the  supreme 
end  of  the  law  and  its  administration  has  been  realized  in  the 
entire  security  of  rights.  When  invasion  of  a  right  is  threat- 
ened, and  the  law  restrains  the  would-be-wrong-doer,  the  right 
itself  is  fully  protected.  But  when,  after  a  wrongful  invasion, 
the  law  restores  the  object  of  the  right,  or  when  the  law  gives 
damages  for  injury  sustained  by  such  invasion,  it  only  ap- 
proximately protects  the  right. 

Paradoxical  as  it  may  seem,  litigation  is  a  conservator  of 
fthe  peace ;  it  not  only  ends  particular  controversies,  it  estab- 
lishes principles,  it  lessens  contention,  and  promotes  harmony, 
confidence,  and  security.  Litigation  is  a  refuge  from  violence, 
oppression,  and  fraud.  When  impartial  tribunals  for  the 
determination  of  controversies  were  substituted  for  the  phys- 
ical force  of  the  parties,  it  was  a  great  stride  in  the  progress 
of  civilization  ;  when  such  tribunals  came  to  be  guided  by 
definite  rules,  the  science  of  jurisprudence  had  its  birth, 

2.  Subjects  of  Jurisprudence. — The  subjects  of  juris- 
prudence are,  rights  and  laws.  Rights  arise  from  facts,  made 
operative  by  law.  From  certain  kinds  of  facts  proceed  rights, 
and  from  other  kinds  result  infringements  of  rights.  The 
laws  define  and  establish  rights,  and  restrain  and  compensate 
infringements  thereof.  One  of  the  principal  functions  of 
government  is,  to  protect  rights,  and  enforce  performance 
of  correlative   duties ;  in  other  words,  to  administer  justice. 


§§  3-4  INTRODUCTION.  2 

It  is  the  ofl&ce  of  judicial  tribunals  to  hear  and  determine 
controversies  respecting  rights  and  infringements  thereof, 
and  to  apply  the  law  to  the  ascertained  state  of  facts. ^  Ex 
facto  oritur  jus. 

3.  Classification  of  Facts. — The  facts  with  which  the 
law  and  its  administration  are  concerned  may  be  divided  into 
two  classes  ;  operative  facts,  and  evidential  facts.  Operative 
facts  are  (1)  such  acts  and  events  as  operate  u^jder  the  law 
to  invest  some  one  with  a  legal  right,  and  are  hence  called 
investitive  facts  ;  (2)  such  as  operate  to  divest  some  one  of 
a  legal  right,  and  are  hence  called  divestitive  facts  ;  and  (3) 
such  as  work  a  wrongful  interference  with  an  existing  legal 
right,  and  are  hence  called  culpatory  facts.  And  such  facts  as 
in  their  nature  tend  to  prove  or  disprove  the  existence  of  any 
of  the  operative  facts  aforesaid  are  called  evidential  facts.^ 

4.  Divisions  of  the  Law. — All  law  may  be  divided  into 
(1)  substantive  law,  by  which  rights  and  duties  are  defined 
and  established,  and  (2)  the  law  of  procedure,  which  pro- 
vides and  regulates  a  course  of  action  whereby  the  require- 
ments of  the  substantive  law  may  be  enforced  in  particular 
cases  of  violence  to  rights  so  defined  and  established.  The 
substantive  law  operates  proprio  vigors,  at  all  times,  and  upon 
all  persons;  the  law  of  procedure  operates  only  upon  occasion 
— when  put  in  operation  to  prevent  or  to  redress  the  infringe- 
ment of  a  right. 

'  Judge  Dillon  says  :  "  It  is  to  correlate  with  evidential,  while 
protect  and  enforce  public  and  pri-  operative  does.  The  term  ultimate 
vate  rights,  that  courts,  with  their  facts  does  not  express,  or  even  con- 
judges  and  officers,  their  jurisdic-  note,  the  idea  of  a  relation  between 
tion  and  machinery,  are  estab-  such  facts  and  the  substantive  law, 
lished  and  maintained.  Their  usual  while  the  term  operative  facts 
function,  their  most  obvious  use,  is  does  ;  and  this  relation  is  the  very 
to  decide  civil  and  criminal  causes. "  principium  of  the  science  of  plead- 
Yale  Lectures,  152.  ing.       The     terms     "  investitive " 

*  Some  of  the  terms  employed  in  and  "  divestitive  "  have  been  used 
this  classification  are  new.  What  by  Bentham,  Austin,  Smith,  and 
are  here  denominated  "  operative  Holland.  The  use  of  "  culpatory  " 
facts  "  are  usually  called  "  ultimate  has  less  sanction.  The  Roman  law- 
facts."  But  ultimate  is  opposed  to  yersusedc?iZpa,therootof  the  word, 
initial  or  inchoate,  and  would  ap-  to  denote  an  actionable  wrong,  free 
ply  as  well  to  evidential  facts  as  to  from  intention.  The  term  "  evi- 
operative  facts.     Ultimate  does  not  dential "  is  in  common  use. 


4,<,t4ra^t:^»M^^  ^4^j2r.-jv^c-     '^  jvA^ 


',-</ 


L-XiU^ 


INTRODUCTION.  §§  5-6 


The  substantive  law  embraces  the  law  of  property,  of  con- 
tracts, and  of  torts ;  the  law  of  jjrocedure  includes  pleading, 
evidence,  and  practice.  It  is  the  office  of  the  substantive  law 
to  announce  under  what  circumstances  the  state  will  recog- 
nize and  support  a  right ;  it  is  the  office  of  the  law  of  pro- 
cedure to  provide  the  means  whereby  that  support  may  be 
obtained. 1  ,7        .- 

Tlie  law  of  pleading  deals  with  operative  facts,  and  pre- 
scribes the  manner  in  which  they  are  to  be  asserted  and  made 
available  in  actions. 

5.  Importance  of  Procedure. — By  far  the  greater  part  of 
any  system  of  laws  consists  of  substantive  law ;  and  if  the 
rights  which  it  defines,  and  the  corresponding  duties  which  it 
imposes,  were  always  understood  and  voluntarily  observed, 
no  other  law  would  be  needed.  But  inasmuch  as  these  rights 
are  sometimes  invaded,  and  performance  of  these  duties 
sometimes  withheld,  there  is  necessity  for  the  remedial  branch 
of  the  law,  whereby  rights  may  be  protected,  obligations  en- 
forced, and  injuries  redressed.  It  is  obvious  that  the  effici- 
enc}^  and  value  of  the  whole  legal  system  depend  largely 
upon  the  adequacy  and  convenience  of  this  suppletory  depart- 
ment, the  law  of  procedure ;  and  it  is  equally  obvious  that  to 
facilitate  procedure  is  to  enhance  correspondingly  the  value 
and  security  of  private  rights. 

6.  Scope  and  Divisions  of  this  Book. — This  work  is  de- 
signed to  set  forth,  in  orderly  progression,  and  in  convenient 
compass,  a  complete  rationale  of  pleading — its  theory,  its 
development,  its  framework,  its  guiding  principles,  and  its 
practical  application.     It  is  in  five  general  divisions. 

Part  I. — The  Philosophy  of  Pleading — is  an  attempt  to 
develop  the  philosophy  of  pleading  under  the  Reformed  Pro- 
cedure. It  is  inductive  in  method,  and  natural  in  arrange- 
ment. It  outlines,  in  orderly  sequence,  the  elementary 
principles  of  the  science,  and  shows  that  these  are  drawn 
from  personal  and  property  relations  in  their  integrity,  and 
adapted  to  the  administration  of  justice  in  cases  of  violence 
to   these  relations.     It  defines  and  classifies  private  rights, 

'  HoL  Jur.  (5th  ed.)  77,  144. 


^e  INTRODUCTION.  4 

shows  the  correlation  of  facts  and  rights,  defines  and  distin- 
guishes the  remedial  right,  explains  the  remedial  agency  of 
courts  and  actions,  and  leads  up  to  the  affirmative  subject- 
matter,  the  cause  of  action,  which  is  the  basis  of  judicial  pro- 
cedure ;  and  it  concludes  with  an  outline  of  the  judicial 
altercation  which  evolves  an  issue. 

Part  II. — The  History  of  Pleading — contains  a  summary 
of  each  of  the  systems  of  pleading  that  have  contributed  to 
the  system  established  by  the  Reformed  Procedure  ;  to  wit, 
the  civil-law  system,  the  common-law  system,  and  the  equity 
system.  The  compendious  statement  therein  of  the  essential 
principles  of  these  older  systems,  many  of  which  principles 
are  embodied  in  the  matured  system  of  code  pleading,  will 
facilitate  a  clear  understanding  and  an  intelligent  applica- 
tion of  its  rules  and  methods. 

This  part  contains  all  of  the  common-law  and  equity  sys- 
tems that  is  essential  to  an  understanding  of  these,  or  that  is 
helpful  in  the  study  and  practice  of  the  modern  system,  and 
is  designed  to  dispense  with  the  use  of  the  somewhat  vol- 
uminous treatises  upon  these  older  systems,  heretofore  justly 
regarded  as  indispensable  stepping-stones  to  an  understand- 
ing of  the  new  system.  Following  this  exposition  of  the 
older  systems,  is  a  brief  account  of  the  origin  and  develop- 
ment of  the  Reformed  American  Procedure,  and  a  compendi- 
ous outline  of  its  essential  features,  showing  at  once  its 
dependence  upon  the  older  systems,  and  its  superiority  over 
them. 

Part  III. — The  Orderly  Parts  of  Pleading — sets  forth  the 
formal  parts  of  code  pleading,  the  framework  of  the  system, 
explains  their  mechanism,  and  their  uses  as  instruments  for 
the  practical  application  of  the  principles  of  the  science. 
These  formal  pleadings  are  explained  under  two  general 
divisions  :  The  Regular  Parts  of  Pleading — complaint, 
answer,  and  reply,  whereby  an  issue  in  fact  is  to  be  regularly 
evolved ;  and  the  Irregular  Parts — motions,  demurrers,  and 
amendments,  whereby  a  supervision  of  the  regular  pleadings 
is  provided,  to  the  end  that  the  issue  evolved  may  be  real, 
material,  and  definite. 

Part  IV. — General    Rules   of    Statement — contains    the 


^5  INTRODUCTION.  §  6 

principal  rules  to  be  observed  in  the  use  of  the  formal  parts 
of  pleading,  in  the  ascertainment  of  the  question  to  be  de- 
cided in  a  cause.  It  is  of  the  first  importance  that  the  ques- 
tion evolved  by  the  pleadings  should  be  specific  and  material. 
To  insure  certainty  and  materiality,  and  to  avoid  obscurity, 
prolixity,  and  confusion,  the  pleadings  are  required  to  conform 
to  certain  general  rules,  based  upon  the  nature  of  rights  and 
the  logic  of  procedure,  and  embodying  the  fundamental  prin- 
ciples of  the  science  of  pleading.  The  pleadings  are  not  only 
to  evolve  an  issue,  they  are  to  furnish  guidance  in  the  intro- 
duction of  evidence ;  and  the  rules  subservient  to  this  end  are 
also  embodied  in  this  part.  These  general  rules  of  statement 
are  grouped  and  considered  in  three  divisions — those  relating 
to  matters  of  substance,  those  relating  to  matters  of  form,  and 
those  relating  to  the  proofs. 

Part  V. — Application  of  Principles — explains  and  illus- 
trates the  application  of  principles  to  particular  cases.  This 
is  the  ultimate  object  toward  which  all  that  precedes  has 
tended,  and  to  which  it  is  subservient.  The  lawyer's  great- 
est difficulty  is  not  in  the  acquisition  of  principles,  but  in 
their  application  to  the  affairs  of  life.  In  this  part  are  dis- 
cussed, the  means  for  discovering  a  right  of  action,  the 
parties  to  an  action,  the  jurisdiction  of  courts,  and  the  sub- 
stantive law  that  is  to  obtain.  Some  of  the  more  common 
actions,  legal  and  equitable,  are  considered,  the  nature  of  each 
explained,  and  the  constituent  elements  of  a  complaint  there- 
in are  concisely  stated ;  and  in  like  manner,  some  of  the  more 
common  defenses  are  considered  and  explained.  Some  forms 
of  pleading  are  here  used,  not  as  precedents,  but  for  illustra- 
tion only ;  there  being  no  authoritative  forms  for  pleadings, 
or  "  approved  modes  of  expression,"  in  pleadings  under  the 
Reformed  Procedure.^ 

1  The  use  of  forms  for  pleadings,  not  without  form  ;  there  must  be 

as  known  to  the  common-law  pro-  method  in  calling  the  powers  of  a 

cedure,   is  alien   to  the  new  pro-  court  into  action,  and  there  must 

cedure.     The  fact  is,  that /orms/or  be  method  in  its  action,  and  there 

pleadings  do  not  belong  to  plead-  must  be  method  and  formality  in 

ing  ;  and  one  well  indocti'inated  in  pleadings  ;     but    there    is    a  wide 

the  science  does  not  need  them,  distinction  between  forms  of  pro- 

Of  course,  the  law  of  procedure  is  cedure,  and  forms  for  pleadings. 


§  6  INTRODUCTION.  6 

The  concluding  chapter  of  this  part  embraces  some  oc- 
casional incidents  of  procedure,  which  relate  more  to  practice 
than  to  pleading,  but  which  are  indispensable  to  a  full  treafc- 
ment  of  the  latter. 


PART  L 

PHILOSOPHY    OF    PLEADING. 


CHAPTER  I. 

A  GENERAL  VIEW  OF  PLEADING. 

7.  Litigation  an  Unexpected  Sequence. — Actions  grow 
out  of  transactions  and  relations  entered  into  without  expec- 
tation of  resulting  litigation ;  and  the  facts  upon  which 
actions  are  prosecuted  and  defended  usually  come  into  exist- 
ence without  expectation  that  they  are  to  be  used  in  a  lawsuit. 
As  a  rule,  actions  are  precipitated  b}-^  unexpected  deflection 
from  a  course  of  conduct  called  for  by  contract  or  by  law. 
Hence,  the  operative  fact^"  of  a  case  are,  at  the  outset,  often 
confused  and  intricate,  and  the  resulting  rights  and  obli- 
gations of  the  parties  are  often  ill-defined  and  obscure.  These 
operative  facts  are  first  to  be  collected,  differentiated,  and 
grouped,  so  as  to  make  apparent  their  legal  operation.  This 
is  the  office  of  pleading. 

8.  Orderly  Course  of  Procedure. — Speaking  comprehen- 
sively, the  orderly  course  of  action  prescribed  by  the  law  of 
procedure  whereby  the  judicial  power  may  be  put  in  motion 
for  the  protection  of  a  right,  or  tlie  redress  of  an  injury,  con- 
sists of  a  series  of  progressive  ste])8  ;  and  these  are,  ordinarily, 
the  following : — 

I.  Having  selected  the  jurisdiction  having  cognizance  of 
the  matter, — the  appropriate  court,  within  the  proper  terri- 
tory,— the  first  requisite  is,  to  show  to  the  court,  bv  a  written 
statement  of  operative  facts,  that  there  \s,  prima  facie,  occa- 
sion for  it  to  act  in  behalf  of  the  applicant. 

H.  The  next  step  is,  to  notify  the  party  complained  of,  and 

7 


§  9  PHILOSOPHY  OF  PLEADING.  g 

thereby  bring  him  within  the  jurisdiction  of  the  court.  This 
is  done  by  the  issuance  and  service  of  the  process  of  the 
court. 

III.  Jurisdiction  being  thus  acquired,  there  follows  a 
judicial  altercation  inter  partes^  to  ascertain  and  disclose 
the  matters  in  controversy  between  them.  This  is  carried 
on  by  means  of  alternate  written  statements  and  denials, 
based  upon  the  application  first  presented ;  and  these  writings, 
from  first  to  last,  are  called  pleadings. 

IV.  The  matter  in  dispute  having  been  developed  by  the 
pleadings,  and  being  a  matter  which,  if  decided  in  a  partic- 
ular wa}'-,  will  warrant  tlie  exertion  of  the  public  force  in 
behalf  of  one  party  against  the  other,  it  is  necessary  in  the 
next  place  to  ascertain  the  truth  as  to  the  point  in  dispute, 
in  order  to  determine  whether  there  is  in  fact  occasion  so  to 
direct  the  public  force.  Accordingly,  the  next  stage  in  the 
Tjrocedure  is  the  trial,  wherein  each  party  endeavors,  in  turn, 
to  maintain,  by  evidence,  his  side  of  the  question  or  questions 
made  by  the  pleadings ;  and  a  finding  follows,  in  favor  of  the 
party  whose  evidence  preponderates. 

V.  Then  follows  the  judgment  of  the  court,  which  is  a 
judicial  determination  of  the  rights  of  the  parties,  in  accord- 
ance with  the  result  of  the  trial.  It  is  the  application  of  the 
law  to  the  ascertained  state  of  facts. 

VI.  The  last  regular  step  in  an  action  is  the  execution, 
which  is  a  writ  issued  by  the  court  to  its  proper  oflQcer,  com- 
manding him  to  carry  the  judgment  into  effect  in  the  manner 
therein  pointed  out.     Executio  estfructus  et  finis  actio7iis} 

0.  liationale  of  the  Procedure. — It  will  be  seen  from 
the  foregoing  account  that  the  end  and  aim  of  the  whole 
course  of  procedure,  up  to  the  issuance  of  final  process,  is, 
to  determine  whether  the  public  force  shall  be  used  in  behalf 
of  one  party  to  compel  some  act  or  forbearance  on  the  part  of 
another.  And  it  will  be  observed  that  the  culminating  point 
in  the  procedure  is  the  trial ;  for  the  trial  practically  deter- 

1  This  outline  is  provisional  only,  which  do  not  fall  within  the  pur- 

rhere  are  occasional  incidents  of  pose  of  this  general  view.    See  HoL 

procedure, — such  as  motions,   de-  Jur.  (5th  ed.)  306-7. 
muirers,  appeal,  writs  of  error, — 


9^  GENERAL  VIEW  OF  PLEADING.  i-  10 

mines  whether  the  public  force  shall  be  so  used.  The  pre- 
cedent steps  are  but  preparatory  for  the  trial,  and  the  judg- 
ment and  execution  follow  the  finding  upon  the  trial.  The 
rights  and  obligations  of  the  parties  are  such  as  the  substantive 
law  attaches  to  the  state  of  facts  ascertained  upon  the  trial ; 
and  the  judgment  announces,  and  the  execution  enforces, 
these  rights  and  obligations. 

But  special  importance  belongs  to  the  pleadinafs,  for  no 
legal  remedy  can  be  obtained  without  them.  It  is  only  by 
the  pleadings  that  the  existence  of  a  right,  and  the  invasion 
thereof,  can  be  brought  to  the  attention  of  the  court,  and 
judicial  action  invoked  ;  for  a  court,  of  competent  jurisdiction, 
can  not  exercise  its  powers  upon  persons  or  property,  unless 
its  action  be  properly  invoked  according  to  the  methods  pre- 
scribed by  law.^ 

The  pleadings  apprise  the  court  and  the  parties  of  the 
respective  grounds  of  the  controversy,  they  furnish  the  ques- 
tion to  be  tried,  they  determine  the  nature  and  scope  of  the 
trial,  the  evidence  produced  must  be  confined  to  the  matters 
put  in  controversy  by  the  pleadings,  and  the  eventual  judg- 
ment must  be  conformed  thereto. 

The  law  of  pleading  stands,  therefore,  at  the  very 
threshold  of  legal  procedure  ;  it  is  so  interwoven,  both  in 
theory  and  in  practice,  with  every  other  title  of  the  law,  as  to 
be  at  once  a  most  important  and  a  most  instructive  topic  of 
juridical  science. 

10.  Development  of  an  Issue. — When  contending  par- 
ties resort  to  a  court  of  justice,  to  determine  and  to  enforce 
their  respective  rights  and  liabilities  under  the  substantive 
law  and  the  operative  facts  of  their  particular  case,  there  are, 
speaking  comprehensively,  two  successive  steps  of  procedure ; 
to  ascertain  the  question  for  decision,  and  to  decide.  For 
the  ascertainment  of  the  question  to  be  decided,  the  law 
requires  each  party  to  state  the  facts  and  the  denials  upon 
which  he  relies  ;  and  from  the  opposition  of  their  statements 
is  evolved  the  point  in  controversy.  When  the  point  in  con- 
ti-Qversy  has  been  thus  developed,  so  that  it  is  affirmed  on  one 

1  Post.  465. 


11 


PHILOSOPHY  OF  PLEADING. 


10 


side  and  denied  on  the  other,  the  parties  are  said  to  be  at 
issue,  that  is,  at  the  end  \_ad  exitum]  of  their  pleading ;  and 
the  emergent  question  itself  is  called  the  issue,  and  is  the 
question  to  be  decided.  When  the  point  so  presented  for 
determination  is  a  dispute  as  to  facts,  it  is  called  an  issue  in 
fact ;  when  the  point  so  presented  is  a  contention  as  to  the 
legal  effect  of  admitted  facts,  it  is  called  an  issue  in  law.^ 

11.  Definition  of  Pleading. — The  law  of  pleading  is 
that  part  of  the  law  of  procedure  which  prescribes  the  order 
in  which,  and  regulates  the  methods  by  which,  the  parties  to 
an  action  shall  state  the  operative  facts,  and  the  denials, 
upon  which  they  respectively  rely  for  relief  or  for  defense. 
And  the  orderly  statements  of  operative  facts,  and  the 
denials  thereof,  alternately  made  by  the  opposing  parties, 
for  the  purpose  of  disclosing  to  the  court  and  to  each  other 
their  respective  claims  and  the  resulting  issue,  are  called 
pleadin(/s.^ 


1  Steph.  PL  102  and  note,  209,  459, 
485. 

'  Blackstone  says  :  "  Pleadings 
are  the  mutual  altercations  between 
the  plaintiff  and  defendant."  This 
definition  is  deficient  in  its  state- 
ment of  differential  attributes.  It 
does  not  state  the  purpose  of  plead- 
ings. Furthermore,  the  pleadings 
are  not  "  altercations."  There  is 
but  one  judicial  altercation  in  an 
action.  The  alternate  allegations 
and  denials,  from  beginning  to  end, 
amount  to  an  altercation  ;  and  the 
pleadings  are  the  instruments 
whereby  this  altercation,  this  en- 
tire contention,  is  carried  on.  The 
learned  author  has  referred  the  con- 
cept, pleadings,  to  a  genus,  alterca- 
tions, that  does  not  embrace  it. 

Chitty  says  :  "  Pleading  is  the 
statement,  in  a  logical  and  legal 
form,  of  the  facts  which  constitute 
the  plaintiff's  cause  of  action,  or 
the  defendant's  ground  of  defense  ; 
it  is  the  formal  mode  of  alleging 


that  on  the  record,  which  would  be 
the  support  of  the  action  or  the 
defense  of  the  party  in  evidence." 
The  former  branch  of  this  defini- 
tion limits  pleading  to  a  statement 
of  facts,  and  omits  denials ;  the 
latter  branch  embraces  evidential 
facts,  whereas  only  operative  facts 
are  to  be  pleaded. 

Stephen  defines  pleadings  as, 
"the  allegations  of  fact,  mutually 
made  on  either  side,  by  which  the 
court  receives  information  of  the 
nature  of  the  controversy."  This 
definition  is  logical,  and  except  for 
its  omission  of  denials,  and  of  dis- 
closure to  the  parties,  is  perhaps 
adequate. 

Gould  says  :  ' '  The  pleadings  con- 
sist of  those  formal  allegations  and 
denials  which  are  offered  on  one 
side  for  the  purpose  of  maintaining 
the  suit,  and  on  the  other  for  the 
purpose  of  defeating  it ;  and  which, 
generally  speaking,  are  predicated 
only  of  matter  of  fact."    This  defi- 


11  GENERAL  VIEW  OF  PLEADING.  §§12-13 

12.  Code  System  of  Pleading. — Each  system  of  judi- 
cature has  its  modes  of  procedure,  and  its  system  of  pleading. 
Perhaps  all  systems  require  each  party  to  make,  in  limine  Utisy 
a  statement  of  his  case ;  but  they  differ  materially  as  to  the 
principles  upon  which  such  statements  are  to  be  constructed, 
and  their  effect  upon  the  subsequent  course  of  the  action. 

The  common  law  sought  to  adapt  its  remedies  to  the 
diversified  natures  of  the  various  injuries  cognizable  by  its 
courts,  by  means  of  a  diversity  of  actions,  each  founded  upon 
the  nature  of  the  particular  right  invaded  ;  au.d  it  was  strict 
in  the  requirement  that  an  injur}'  should  be  redressed  only  by 
its  proper  action.  This  rigid  requirement  gave  rise  to  what 
may  justly  be  regarded  as  a  distinguishing  characteristic  of 
the  common-law  system  of  procedure — a  thorough  separation 
of  actions  into  classes  and  forms  of  action,  and  an  inflexible 
adherence  to  technical  rules,  forms,  and  distinctions. 

By  the  system  of  pleading  established  by  the  Reformed 
Procedure,  and  commonly  called  "  Code  Pleading,"  technical 
forms  have  been  abolished  ;  the  novelty  of  the  injury  com- 
plained of  matters  not,  provided  it  be  an  invasion  of  a  right 
recognized  by  the  law  ;  and  the  maxim,  that  every  right  shall 
have  a  shield,  and  every  wrong  a  remedy,  is  fortified  by  the 
simplicity  and  pliancy  of  its  modes  of  procedure. 

13.  Right  and  Remedy  Concurrent. — It  is  a  maxim  of 
the  common  law,  and  a  central  principle  of  pleading,  that 
where  there  is  a  legal  right,  there  is  a  remedy  for  its  infrac- 
tion. Ubi  jus,  ibi  remedium.  And  the  converse  of  this 
maxim  is  equallj''  true,  that  there  can  be  no  remedy,  where 
there  is  no  legal  right.  The  only  means  provided  by  law  for 
enforcing  a  right,  or  obtaining  a  remedy,  is  an  action  in  a 
court  of  justice.  It  follows,  that  whoever  invokes  the  action 
of  a  court  of  justice  in  his  behalf  must  show  (1)  a  legal  right 
in  himself,  and  (2)  its  infringement  by  him  against  whom  he 
seeks  redress. 

Private  rights  are  therefore  the  foundation,  and  they  are 

nition  is  logical  in  form,  though  that  allegations  are  '*  for  the  pur- 
wanting  in  perspicuity.  Only  in  a  pose  of  maintaining  the  suit,  and 
very  indirect  sense  can  it  be  said    for  the  pvu-pose  of  defeating  it." 


gl3  PHILOSOPHY  OF  PLEADING.  12 

the  sole  concern,  of  civil  procedure.  The  nature  of  such 
rights,  and  the  principles  of  the  substantive  law  defining 
and  establishing  them,  are  the  groundwork  upon  which  the 
science  of  pleading  is  constructed.  A  compendious  view  of 
private  rights  and  their  correlative  duties  is  therefore  neces- 
sary, to  a  complete  explication  of  the  philosophy  of  pleading. 


CHAPTER  II. 

PRIVATE  RIGHTS  AND  DUTIES. 
I.   OF  THE  NATURE  OF  PRIVATE  EIGHTS. 

14.  Limited  Scope  of  this  Chapter. — The  law  of  pro- 
cedure has  for  its  end  the  conservation  of  rights  and  the 
enforcement  of  duties.  Its  adaptation  to  this  end  can  not  be 
appreciated,  nor  can  its  principles  be  intelligently  applied  in 
practice,  without  an  understanding  of  the  nature  and  compass 
of  those  private  rights  which  the  law  recognizes  and  protects, 
and  of  the  correlative  duties  which  the  law  undertakes  to 
enforce.  It  is  not  intended  to  enter  upon  an  inquiry  as  to 
the  abstract  nature  of  right,  or  as  to  the  standard  of  right 
and  wrong.  A  consideration  of  these  metaphysical  problems 
would  be  an  unprofitable  diversion  here.  It  is  proposed  only 
to  explain  and  to  classify  those  established  private  rights  ^  of 
which  the  substantive  law  takes  cognizance  ;  and  this  will  be 
done  only  so  far  as  necessary  to  an  exposition  of  the  princi- 
ples of  pleading. 

15.  Eights  Not  of  Legal  Obligation. — It  must  here  be 
premised,  however,  that  there  are  many  rights  which  the  law 
does  not  undertake  to  protect,  and  many  obligations  which 
the  law  does  not  undertake  to  enforce.  The  law  defines  and 
regulates  the  domestic  relations;  but  so  much  of  these  re- 
lations lies  outside  the  realm  of  the  law,  that  a  man  may  be 
a  bad  father,  a  bad  husband,  or  a  bad  guardian,  without  com- 
ing into  conflict  with  the  law.     So  there  are  many  rights  and 

1  By  private  rights  is  here  meant,  such  as  allegiance  to  the  govern- 
all  those  rights  which  grow  out  of  ment,  and  protection  to  tlie  people, 
jural  relations  among  persons,  as  Such  private  rights  entitle  one  per- 
contradistinguished  from  those  son,  usxially  called  the  person  of 
public  rights  and  duties  which  inherence,  and  oblige  another,  usu- 
grow  out  of  the  rela'  ions  between  ally  called  the  person  of  incidence, 
the  govenunent  and  the  people —  Hoi.  Jur.  (5th  ed.)  79, 81. 

13 


§  16  PHILOSOPHY  OF  PLEADING.  14, 

duties  that  do  not  enter  into  the  jural  relations  of  persons ; 
and  the  state  does  not  undertake  to  enforce  these,  hut 
relegates  them  to  the  forum  of  conscience,  and  to  the  fostering 
sanctions  of  society.  This  distinction,  between  juridical 
and  non-juridical  rights,  and  between  actionable  and  non- 
actionable  injuries,  lies  at  the  very  threshold  of  procedure, 
and  will  frequently  be  referred  to  throughout  this  work. 

16.  Rights  of  Legal  Obligation. — Having  distinguished 
those  rights  and  obligations  as  to  which  the  law  is  indifferent, 
we  come  now  to  those  private  rights  that  are  of  legal  validity 
— those  for  whose  invasion  the  law  furnishes  a  remedy.  With- 
out undertaking  to  define  a  legal  right,  in  concise  and  ade- 
quate terms,  it  will  be  sufficient  for  the  present  purpose 
to  say,  that  one  has  a  legal  right,  when,  by  the  law,  another 
is  bound  to  do  or  to  forbear  in  regard  to  him.^  The  cor- 
relative obligation  to  do  or  to  forbear  is  termed  a  legal  duty. 

A  legal  right  may,  or  may  not,  coincide  with  a  co-existent 
moral  right.  It  draws  its  validity,  not  from  ethical  considera- 
tions, but  from  the  fact  that  the  state  will  lend  its  aid  to 
maintain  and  enforce  it.^  This  protection  from  the  state  is  the 
essence  of  a  legal  right.  It  would  be  a  vain  thing  in  law  to 
imagine  a  right,  without  the  means  to  maintain  it.  Lex  nil 
frustra  facit? 

'  Austin's  Jur.  576.  irrespectively  of  his  having,  or  not 

'  Hoi.  Jur.  (5th  ed.)  71 ;   Amos'  having,   either  the  might,  or  the 

Sci.   of  Law,   95  ;     Hoknes'   Com.  moral  right  on  his  side,  the  power 

Law,  214.  of  the  state  wiU  protect  him  in  so 

*  Mr.  Holland  thus  distinguishes  carrying  out  his  wishes,  and  will 

might,  moral  right,  and  legal  right:  [at  his  instance]  compel  such  acts 

"  If  a  man,  by  his  own  force  or  per-  or  forbearances  on  the  part  of  other 

suasion,  can  carry  out  his  wishes,  people  as  may  be  necessary  in  order 

either  by  his  own  acts,  or  by  influ-  that  his  wishes  may  be  so  carried 

encing  the  acts  of  others,  he  has  out,  then  he  has  a  legal  right  so  to 

the  might  so  to  carry  out  his  wishes,  carry  out  his  wishes. 

If,  irrespectively  of  having  or  not  "  If  it  is  a  question  of  might,  all 

having  this  might,  public  opinion  depends  upon  a  man's  own  powers 

would  view  with   approval,  or  at  of  force  or  persuasion.     If  it  is  a 

least    with    acquiescence,    his    so  question  of  moral  right,  all  depends 

carrying  out  his  wishes,  and  with  on  the  readiness  of  public  opinion 

disapproval  any  resistance  made  to  to  express  itself  upon  his  side.     If 

his  so  doing,  then  he  has  a  moral  it  is  a  question  of  legal  right,  all 

right  so  to  carry  out  his  wishes.    If,  depends  upon  the  readiness  of  the 


15  PRIVATE  RIGHTS.  §  17 

17.  Rights  Limited  by  Other  Rights. — The  law  does 
not  undertake  to  secure  to  every  one  complete  indemnity 
from  harm  or  inconvenience  at  the  hands  of  others.  Where 
there  would  otherwise  be  conflict  of  rights,  the  law  must  fix 
a  bound  to  each,  so  that  the  orbit  of  the  one  may  not  impinge 
upon  the  orbit  of  the  other.  For  example,  the  use  of  a  street 
by  the  public,  and  the  use  thereof  by  an  adjacent  lot-owner, 
are  each  subject  to  certain  incidental  and  temporary  encroach- 
ments. The  right  of  the  public  in  the  use  of  the  street  is 
the  right  of  transit  to  every  one  who  has  occasion  to  use  it. 
But  the  lot-owner  may  cut  the  street  to  lay  pipes,  or  to  build 
a  sewer ;  he  may,  temporarily,  fill  it  with  building  materials, 
or  with  debris  from  his  lot.  These  incidental  and  temporary 
encroachments  upon  the  highway,  if  necessary  and  reasonable, 
are  not  wrongful,  because  they  do  not  invade  any  right  of 
the  public.  The  true  theory  is,  not  that  the  right  of  the 
public  may  be  so  far  invaded,  but  that  the  right  of  tlie  public 
to  use  the  highway,  is,  in  its  integrity,  only  a  qualified  right 
of  transit. 

The  reason  that  probable  cause  excuses  one  from  liability 
for  the  prosecution  of  an  innocent  person  is,  not  that  the 
right  of  personal  security  may  be  so  invaded  with  impunity, 
but  that  such  right,  in  its  totality,  is  subject  at  all  times  to 
prosecution,  grounded  on  probable  cause.  The  general  wel- 
fare of  the  community  demands  that  the  right  of  personal 
security   shall  be   so    qualified ;    and  many   private     rights 

state   to    exert    its    force    on    his  gives  any  one  special  riglits  not 

behalf."      Hoi.  Jur.   (oth   ed.)  73,  shared  by  the  body  of  the  people, 

74.  it  does  so  on  the  ground  that  cer- 

Justice  Holmes  says:  "A  legal  tain  special  facts,  not  true  of  the 

right  is  nothing  but  a  permission  rest  of  the  world,  are  true  of  him. 

to  exercise  certain  natural  powers,  Wlien  a  group  of  facts  thus  singled 

and  upon  certain  conditions  to  ob-  out  by  the  law  exists  in  the  case  of 

tain  protection,  restitution,  or  com-  a  given  person,  he  is  said  to  be  en- 

pensation,  by  the  aid  of  the  public  titled  to  the  corresponding  rights  ; 

force.     Just  so  far  as  the  aid  of  the  meaning,    thereby,   that    the    law 

public  force  is  given  a  man,  he  has  helps  him  to  constrain  his  neigh- 

a     legal    right.  .  .  .  Every    right  bors,  or  some  of  them,  in  a  way  in 

is  a  consequence  attached  by  the  which  it  would  not,  if  all  the  facts 

law  to  one  or  more  facts  whicli  the  in  question  were  not  true  of  him." 

law  defines,  and  wherever  the  law  Holmes'  Com.  Law,  214. 


g  18  PHILOSOPHY  OF  PLEADING.  IQ 

are,   in   their  entirety,   necessarily   subject   to   like  limita- 
tions. 

n.   CLASSIFICATION  OP  PRIVATE  RIGHTS. 

18.  General  Division  of  Rights. — Private  rights  are  of 
two  kinds ;  jura  in  rem,  and  jura  in  personam.  Rights 
in  rem  are  those  which  avail  against  persons  generally,  while 
rights  in  personam  avail  against  certain  or  determinate  per- 
sons. The  phrase  in  rem,  as  here  used,  denotes,  not  the 
object,  but  the  compass  of  the  right.  Jus  in  rem  does  not 
mean  merely  a  right  over  a  thing  ;  it  means  a  right  that  may 
be  asserted  against  all  the  world.  A  right  in  rem  clothes  its 
owner  with  exclusive  control  of  the  object  of  his  right.  The 
essential  idea  is,  the  exclusion  of  all  persons  save  the  owner 
of  the  right.  The  essential  idea  of  a  right  in  personam  is, 
the  right  to  exact  performance  of  an  obligation.  The  duties 
that  correlate  with  jura  in  rem  are  always  negative — to  for- 
bear or  abstain.  Of  the  duties  that  correlate  with  jura  in 
personam,  most  are  positive — to  do  or  perform.  The  duty^ 
to  abstain  from  striking  another,  or  from  taking  his  property, 
or  from  defaming  his  reputation,  is  a  negative  duty,  and  the 
corresponding  right  is  a  right  in  rem,  availing  against  persons 
generally.  The  obligation  to  pay  a  debt  is  a  positive  duty, 
and  the  corresponding  right  to  exact  payment  is  a  right  in 
personam,  availing  against  a  determinate  person,  the  debtor. 
One  in  possession  of  land,  with  only  an  equitable  title,  has  a 
right  against  persons  generally  to  forbear  from  trespass,  which 
is  a  right  in  rem  ;  and  he  may,  at  the  same  time,  have  a  right 
against  the  person  holding  the  legal  title  to  have  such  person 
convey  the  same  to  him,  which  is  a  right  in  personam.  But 
the  right  in  rem  is  not  more  a  right  over  or  in  the  land,  than 
is  the  right  in  personam.'^ 

1 1  have  employed  the  terms  jus  and  of  modem  writers  on  jtirispru- 

tn  rem  and/ws  in _perso7iam,  because  dence,  to  render  them  unambigu- 

they  are  sufficiently  expressive, —  ous ;  though  I  agree  with  Austin 

the    former    denoting    generality,  and  Holland,  that  a  pair  of  anti- 

and  the  latter  determinateness, —  thetical  terms,  denoting  briefly  and 

and  because  their    meanings   are  precisely  these  two  classes  of  rights, 

sufficiently  established  by   usage,  is  yet  a  desideratum  in  the  language 

both  of  the  classical  Roman  jurists  of  jurisprudence.     These  terms  are 


17  PRIVATE  RIGHTS.  g§  19-20 

19.  Rights  in  Rem. — Jura  in  rem  are  proprietary  rights. 
They  clothe  the  owner  with  control  of  the  object  of  his  rights 
to  the  exclusion  of  all  other  persons.  The  term  in  rem 
denotes  the  compass  of  the  right,  and  connotes  the  object  of 
the  right.  The  principal  rights  in  rem  are,  the  right  of 
property  in  one's  self,  and  the  right  of  property  in  things. 

I.  The  right  of  self-ownership,  or  property  in  one's  self, 
embraces  the  right  of  personal  security,  and  the  right  of  per- 
sonal liberty. 

(1)  The  right  of  personal  security  consists  in  the  unin- 
terrupted enjoyment  of  one's  life,  person,  health,  and  reputa- 
tion. It  imposes  upon  all  others  the  duty  not  to  destroy  or 
imperil  the  life,  not  to  injure  or  annoy  the  person,  not  to  in- 
jure or  endanger  the  health,  and  not  to  defame  the  reputation. 

(2)  The  right  of  personal  liberty  consists  in  immunity 
from  imprisonment  or  other  physical  restraint.  It  imposes 
upon  every  person  the  duty  not  to  abridge  or  interfere  with 
the  personal  liberty  of  another,  unless  by  due  course  of  law. 

II.  The  right  of  property  in  things  consists  in  the  free  use, 
control,  and  disposal  of  one's  acquisitions;  and  it  imposes 
upon  all  others  the  correlative  duty  not  to  interfere  with 
the  object  of  such  right.  This  right  is  derived  from  and 
rests  upon  the  riglit  of  self-ownei'ship.  The  exertion  of  a 
person  in  the  lawful  acquisition  of  a  thing  establishes  a  bond 
between  the  person  and  the  thing ;  so  that  an  attack  of  the 
thing  is  an  attack  of  the  person,  and  he  may  complain  of  the 
injury. 

20.  Rights  in  Personam. — Jura  in  personam  q^yq  rights 
of  obligation.  The  essential  idea  is,  the  right  to  exact  per- 
formance of  an  obligation  from  a  certain  person.  These 
rights  originate  ex  contractu^  or  ex  lege. 

also  used  to  designate  actions  and  Ev.  525,  540, 541.    Decrees  in  equity , 

proceedings  ;    proceedings  in  rem  while  they  affect  property,  usually 

being  against    the   specific  tiling,  operate  in  perso)iam.     Post,    138 ; 

whUe    proceedings    i?i    personam  Bispli.  Prin.  of  Eq.  47. 

are     against     the     person.      The  The  generic  expression  jus  in  rem 

former    include    the      condenina-  must  not  be    confused    with    the 

tion  of  property,  as  in  Admiralty  or  elliptical  and  somewhat  ambiguous 

in  the  Exchequer,  and  proceedings  expression  jus  ad  rem,  which  usu- 

to  fix  the  personal  status  of  parties,  ally  signifies  a  right  to  a  determin- 

as  in  divorce  and  in  bastardy.    1  Gr.  ate  thing.    Austin "s  Jur.  534, 535. 

2 


§  20  PHILOSOPHY  OF  PLEADING.  18 

I.  Rights  ex  contractu  arise  from  executory  contracts.  The 
law  imposes  upon  the  parties  to  a  legal  contract  an  obligation 
to  perform  their  promises.  Pacta  legem faciunt  inter  'partes. 
The  primary  right  of  an  obligee  is  to  have  the  promise  of  the 
obligor  performed.  Upon  breach  of  the  contract,  a  secondary 
or  remedial  right,  a  right  to  compensation  in  damages,  arises. 

II.  Rights  ex  lege  arise  from  various  jural  relations  among 
men,  without  the  intervention  of  either  contract  or  delict.  If 
one  has  another's  money  or  property  which  in  equity  and  good 
conscience  he  ought  to  restore,  the  law  imposes  an  obligation 
to  restore  it,  and  creates  a  correlative  right  in  the  owner. 
The  parent  owes  to  his  minor  child  the  duty  to  support,  and 
the  child  has  the  correlative  right  to  demand  support  from 
the  parent.  One  who  is  entitled  to  have  a  public  officer  do 
a  particular  official  act  for  him,  has  a  legal  right  to  that 
effect,  and  the  officer  owes  the  corresponding  legal  duty. 

If  money  be,  by  mistake,  paid  to  one,  when  it  should  have 
been  paid  to  another,  there  arises,  by  operation  of  law,  a  right 
in  favor  of  the  latter,  and  against  the  former;  and  upon 
demand  and  refusal  to  pay,  an  action  may  be  maintained  for 
its  recovery.^  If  lost  property  be  found  by  one  not  the 
owner,  there  is  an  obligation  upon  the  finder  to  restore  it  to 
the  owner,  on  demand.  If  property  be,  by  mistake,  delivered 
to  the  wrong  person,  the  recipient  is  bound  to  deliver  it,  on 
demand,  to  the  person  for  whom  it  was  intended. 

These  legal  relations  are  sometimes  called  implied  con- 
tracts ;  but  when  divested  of  fiction  and  technicality,  the  true 
ground  of  such  rights  is  the  legal  obligation,  based  upon 
natural  justice  and  equity.^ 

'  Right  and  Law,  192  ;  Shaffer  v.  classification  is  made  with  the  view, 

McKee,  19  O.  S.  526.  among  others,  to  ground  the  dis- 

^  Some  writers  on  jurisprudence  in-  tinction  between  rights  and  delicts, 

elude  with  rights  i?i  personam  those  the  two  constituent  elements  of  a 

arising    ex   delicto.     These    rights  cause  of  action.     For  a  full    and 

arise  almost  exclusively  from  torts,  analytical  discussion  of  legal  rights 

or  violations  of  rights  in  rem,  and  and    duties,   see    Holland's   "  Ele- 

are  not  primary  rights,  but  second-  ments  of  Jurisprudence,"  Smith's 

ary    rights,   arising  from    delicts.  "  Right  and  Law,"  Austin's  "  Lect- 

They  are  excluded  here,   because  ures  on  Jurisprudence,"  and  "  The 

they  are  not  primary  rights,  but  Science  of  Law,"  by  Amos, 
remedial  rights ;  and  because  this 


CHAPTER  III. 

CORRELATION  OF  FACTS  AND  RIGHTS. 

21.  Rights  Arise  from  Facts  and  Law.— Private  rights 
and  their  correlative  duties  having  been  defined  and  classified, 
it  will  be  in  order  to  inquire  what  it  is  that  will  confer  a 
right,  and  impose  its  corresponding  duty.  It  is  clear  that 
rights  do  not  belong  equally  to  all  persons.  One  may  have 
the  exclusive  right  to  the  use  and  disposal  of  certain  prop- 
erty ;  one  m«y  have  a  right  to  the  services  of  another,  or 
may  be  entitled  to  the  protection  of  another.  What  is  it 
that  gives  a  particular  right  to  a  particular  person,  and  im- 
poses the  corresponding  duty  upon  another  ? — Every  right  is 
a  legal  consequence  arising  from  a  particular  fact  or  a  partic- 
ular group  of  facts  ;  and  when  such  particular  fact  or  facts 
can  be  affirmed  of  any  one,  he  has  the  consequent  legal  right ; 
that  is,  the  law  will  help  him  to  constrain  all  other  persons, 
or  a  particular  person,  in  a  way  in  which  it  would  not,  if  the 
fact  or  facts  in  question  were  not  true  of  him.^  Hence,  a 
statement  that  denotes  such  operative  facts  connotes  the  con- 
sequent right ;  but  a  statement  that  denotes  such  consequent 
right  does  not  connote  the  corresponding  operative  facts. 
For  example,  the  statement  that  A.  made  and  delivered  to  B. 
his  promissory  note  for  one  hundred  dollars,  payable  in  ten 
days,  that  the  time  has  elapsed  and  the  note  is  unpaid, 
clearly  denotes  the  operative  facts,  and  as  clearly  connotes 
the  consequent  right  of  B.  to  enforce  payment ;  whereas,  the 
statement  that  A.  owes  B.  one  hundred  dollars,  past  due, 
would  denote  the  same  right,  but  would  not  disclose  the 
facts  from  which  the  right  arises  by  operation  of  law.  The 
former  statement  asserts  the  right  as  a  legal  consequence, 
arising   from  the   facts   stated ;  while   the   latter   statement 

'  Holmes'  Com.   Law,  214,   215  ;  Hoi.  Jur.  (5th  ed.)  79  et  seq. 

19 


^  22  PHILOSOPHY  OF  PLEADING.  20 

asserts  the  right  as  a  mere  conclusion,  drawn  from  facts  not 
stated. 

22.  Constituent  Factors  of  a  Right. — Rights  arise 
from  facts,  by  operation  of  law.  In  the  example  just  given, 
the  statement  that  A.  owes  B.  is  the  statement  of  a  conclu- 
sion, drawn  from  facts  not  stated  ;  while  the  statement  that 
A.  made  and  delivered  to  B.  his  note,  which  is  due  and  un- 
paid, is  the  statement  of  facts  to  which  the  law  attaches,  as 
a  legal  consequence,  the  right  embodied  in  the  conclusion 
before  stated. 

The  important  thing  to  grasp  is,  that  such  relations  are 
compounded  of  operative  facts  and  consequent  rights ;  and 
that,  in  determining  whether  one  person  has  a  legal  right 
against  another,  two  things  must  be  considered ;  the  operative 
facts  that  exist,  and  the  consequences  attached  by  the  law  to 
such  facts.^ 

Not  only  do  rights  arise  from  facts,  but  rights  are,  in  like 
manner,  extinguished  by  facts.  For  example,  suppose  that 
A.,  heretofore  indebted  to  B.,  has  paid  the  debt.  Here  we 
have  the  operative  fact  of  payment,  and  the  consequent 
extinguishment  of  the  right  of  A.  to  receive  payment. 

This  correlation  of  facts  and  rights,  regulated  in  the  main 
by  the  substantive  law,  shows  that  to  assert  the  existence  of 
a  legal  right  in  any  one,  it  is  necessary  only  to  affirm  that 
certain  operative  facts  are  true  of  him,  and  to  know  that  to 
these  facts  the  law  attaches  the  right.  Here  is  the  essential 
idea  of  pleading. 

'  Holmes'  Com.  Law,  215. 


CHAPTER  IV. 

OF  REUEF  BY  CIVIL  ACTION. 

23.  Ri^ht  and  Remedy  Concurrent. — It  is  clear  that 
Mie  may  be  prevented  from  exercising  his  legal  right,  with- 
out losing  the  right  itself.  A  man  has  a  right  to  his  liberty, 
though  lie  be  unlawfully  imprisoned ;  and  he  has  a  right  to 
Ids  property,  though  unjustly  deprived  of  it.  It  follows,  that 
when  one  has  been  unlawfully  deprived  of  the  exercise  of 
his  right,  he  should  be  restored  to  its  enjoyment,  or  com- 
pensated for  its  loss  ;  for  a  right  without  a  remedy  is  as 
though  it  were  not.  Hence  it  is  a  maxim  of  the  law,  that 
where  there  is  a  legal  right,  there  is  a  remedy  for  its  infrac- 
tion. If  restoration  of  the  specific  right  be  impracticable, 
restitution  in  value  is  to  be  made.^  It  is  obvious  that  the 
security  and  the  value  of  private  rights  are  measured  by  the 
promptness  and  the  adequacy  of  the  remedy  that  may  be  had 
for  their  infringement.^ 

24.  Right  to  Maintain  Transferred  to  the  State. — 
Primarily,  and  in  the  absence  of  a  remedial  agency,  the  right 
to  maintain  by  force  is  incident  to  every  recognized  right. 
This  right  to  maintain  by  force  is,  by  the  institution  of  gov- 
ernment, taken  from  the  individual  and  vested  in  the  state  ; 
and  in  lieu  thereof  he  is  given  a  right  of  action,  or  the  right 
to  invoke  the  action  of  the  state,  for  the  maintenance  of  his 

'  3  Bl.  Com.  116.  of  the  rights  which  it  recognizes 
""A  right  that  could  be  violated,  as  existing.  So  long  as  all  goes 
without  giving  rise  to  any  new  le-  well,  the  action  of  the  law  is  dor- 
gal  relation  between  the  person  of  mant.  When  the  balance  of  jus- 
inherence  and  the  person  of  inci-  tice  is  disturbed  by  wrong-doing, 
dence,  would  not  be  a  legal  right  or  even  by  a  threat  of  it,  the  law 
at  all.  .  ,  .  The  object  of  a  devel-  intervenes  to  restore,  as  far  as  pos- 
oped  system  of  law  is  the  conser-  sible,  the  stattis  quo  ante."  Hoi. 
vation,  whether  by  means  of  the  Jur.  (5th  ed.)  273,  275. 
tribunals  or  of  i)ermitted  self-help, 

21 


§25 


PHILOSOPHY  OF  PLEADING. 


22 


private  right.^  Jus  persequendi  judicio  quod  sihi  debe- 
tur. 

The  only  remedial  agency,  in  the  state  as  in  the  individual, 
is  compulsion ;  it  is  regulated  public  force  substituted  for 
unrestrained  private  force.  This  public  force  is  exerted  by 
compelling  the  wrong-doer  either  to  restore  the  injured  party 
to  his  former  situation,  or  to  pay  him,  in  money,  an  equiv- 
alent for  his  loss.2 

25.  Court  and  Action  Defined. — A  court  is  a  judicial 
tribunal  empowered  by  the  state  to  hear  and  determine  con- 
troversies respecting  legal  rights,  and  invasions  thereof,  and 
to  protect  such  rights,  and  redress  such  wrongs,  by  enforce- 
ment of  its  decisions.^  An  action  ^  is  a  proceeding  in  a 
court  of  justice  to  procure  its  interposition  to  protect  a  right, 
or  to  obtain  a  remedy  for  its  invasion.  Actio  non  est  jiiSy 
sed  medium  jus  persequendi.^  It  will  be  seen  that  courts 
and  actions  are  but  instrumentalities  of  the  state,  (1)  for 


1  The  right  of  self-defense  is  an 
exception.  This  right  of  self-help 
is  not  conferred  by  the  state,  nor  is 
it  transferred  to  the  state  ;  it  is  sim- 
ply retained  by  the  individual.  The 
reason  is,  that  the  pressing  emer- 
gency will  not  admit  of  the  delay 
necessary  for  resort  to  the  state. 
To  require  one  to  resort  to  the  state 
in  such  case,  would  be  to  deprive 
him  of  remedy.  The  law  does  not 
create  the  right  of  self-defense  ;  it 
regulates  its  exercise. 

The  right  of  the  injured  party 
to  abate  a  nuisance  under  certain 
conditions  is  another  instance  of 
the  right  of  self-help  reserved  to 
the  individual,  because  the  injvuy 
is  of  a  kind  that  demands  an  im- 
mediate remedy. 

*  Evans  PI.  5  ;  Smith's  Right  and 
Law,  218  ;  Hoi.  Jur.  (5th  ed.)  277. 

'  Blackstone  adopts  Coke's  defini- 
tion :  "  A  court  is  a  place  where 
justice  is  judicially  administered." 
3  Bl.  Com.  23.    Judge  Dillon  says  : 


"  The  essential  attributes  of  courts 
of  justice,  if  I  may  attempt  to  de- 
fine them,  are,  that  they  shall  be 
held  by  judges  appointed  or  se- 
lected for  that  purpose  ;  that  cases 
and  controversies  therein  shall  be 
cast  in  some  form  of  pleadings  re- 
sulting in  specific  issues  of  law  or 
fact,  in  which,  on  issues  of  fact, 
only  competent  evidence  is  admis- 
sible, and,  if  not  documentary,  to 
be  given  under  the  sanction  of  an 
oath,  with  the  right  to  cross-ex- 
amine ;  that  there  shall  be  a  public 
trial  or  hearing  resulting  in  a  judg- 
ment or  decree,  which  the  court 
has  the  inherent  power,  by  its  own 
officers,  process,  and  machinery,  to 
enforce."    Yale  Lectures,  31,  32. 

*  The  term  "  suit,"  which  wa8 
formerly  applied  to  such  proceed- 
ing in  equity,  is  sometimes  used  as 
synonymous  with  "  action." 

»Hol.  Jur.  (5th  ed.)  277,  and 
notes  ;  Austin's  Jur.  1035. 


23  RELIEF  BY  CIVIL  ACTION.  §§26  27 

determining  whether,  in  a  particular  case,  the  public  force 
shall  be  used  in  behalf  of  one  to  compel  some  act  or  forbear- 
ance on  the  part  of  another,  and  (2)  for  enforcing  the  law, 
as  embodied  in  the  decision  of  the  court.  It  must  be  remem- 
bered, that  judicial  power  is  never  exercised  for  the  mere 
purpose  of  giving  effect  to  the  will  of  the  judge,  but  always 
for  the  purpose  of  giving  effect  to  the  law ;  the  theory 
being,  that  the  decision  of  the  court  is  always  secundum 
legem.  It  follows,  therefore,  that  judicial  power  is  not  to  be 
contradistinguished  from  the  power  of  the  law.^ 

26.  Public  Injuries  not  Redressible  by  Civil  Action. — 
The  law  does  not  furnish  a  private  remedy  for  anything  but 
a  private  injury ;  that  is,  the  invasion  of  a  private  right. 
Tlierefore,  when  the  wrongful  act  invades  only  the  public 
right,  and  is  an  injury  to  the  entire  community,  no  one  of 
whom  sustains  injury  different  in  kind  from  that  sustained 
by  the  general  public,  the  remedy  by  civil  action  does  not 
apply.  The  reason  generally  given  is,  that  Avhere  only  a 
public  right,  one  common  to  all  the  people,  is  affected,  no 
one  person  can  assign  his  particular  portion  of  the  injury  ; 
and  if  he  could,  it  would  be  unjust  to  harass  the  offender  by 
innumerable  actions  for  one  offense.^  But  an  additional 
reason  is,  that  in  such  case  no  private  right  is  invaded. 

An  act  may  be  at  once  a  crime  and  a  tort,  and  so  may  be 
both  indictable  and  actionable.  An  assault  and  battery,  for 
example,  violates  the  private  right  of  personal  security,  and 
gives  the  injured  person  a  right  of  action  for  damages  ;  but 
such  act  of  violence  is  a  menace  to  the  safety  of  society  gen- 
erally, and  so  the  state,  as  the  guardian  of  public  order,  may 
indict  and  punish  the  offender.^ 

27.  Actual  Loss  without  Remedy. — There  is  a  class  of 
circumstances  in  which  one  may  sustain  loss  that  is  not  reme- 
diable by  action,  because  the  loss  is  not  occasioned  by  any- 
thing that  the  law  esteems  an  injury  ;  that  is,  no  recognized 
legal  right  has  thereby  been  impaired.  Such  loss  is  termed 
damnum  absque  injuria.     It  is  not  enough  that  one  sustain 

1  Per  Marshall,  C.  J.,  in  Osbum  ^  q^  lj^^  55^  ;  Broom  Max.  206. 
V.  U.  S.  Bank,  9  Wheat.  738,  866.  ^  HoI.  Jur.  (5th  ed.)  280. 


!?2S  PHILOSOPHY  OF  PLEADING.  04 

loss  by  the  act  of  another  ;  the  loss,  to  be  remediable  by  action, 
must  result  from  the  invasion  of  some  recognized  legal  right. 
It  is  not  enough  that  there  be  damnum ;  there  must  be 
damnum,  cum  injuria.  For  example,  interference  with 
another's  trade  by  fair  competition  is  not  actionable,  because 
the  right  of  any  one  to  pursue  a  trade  is  qualified  by  the  equal 
right  of  every  other  person  to  pursue  the  same  trade.  There- 
fore, if  A.  compete  in  trade  with  B.,  to  the  damage  of  the 
latter,  B.  is  remediless,  because,  though  loss  has  ensued,  J:he 
orbit  of  his  legal  right  has  not  been  impinged  upon.  There 
has  been  damnum.,  but  not  injuria)-  So,  if  one,  while  doing 
what  is  lawful,  and  using  due  care,  injure  another  by  accident, 
the  injured  party  is  without  remedy .^  The  reason  is,  that  the 
right  of  the  injured  party,  in  its  totality,  was,  to  have  only 
such  degree  of  personal  security  as  the  exercise  of  due  care 
by  the  other  party  would  aiford ;  and,  although  he  has  suf- 
fered loss  by  the  unauthorized  act  of  the  other,  his  legal  right 
of  personal  security  has  not  been  interfered  with.  He  has 
not,  in  legal  contemplation,  been  damnified.  Actio  non 
datur  non  damnificato.^ 

It  may  here  be  observed  that  courts  have  no  authority  over 
political  questions.  Of  such  matters  the  political  depart- 
ments of  the  government  have  exclusive  cognizance,  and 
their  determination  thereof  is  conclusive.*  And  the  demand 
of  an  individual  against  the  state  can  not  be  enforced  by 
action,  unless  such  action  is  specially  authorized  by  law,  or 
otherwise  assented  to  by  the  state.^ 

28.  Remedy  without  Actual  Loss. — On  the  other  hand, 
when  a  recognized  legal  right  has  been  violated,  its  possessor 
has,  in  general,  a  remedy  by  action,  even  though  he  has  not 
sustained   actual   loss.     In  such  case,  there  is  injuria   sine 

1  Rogers  v.  Dutt,  13  Moore  P.  C.  *  Cooley  Prin.  (Donst.  Law,  146  ; 

C.  207,  241.     Cf.  Per  Okey,  J.,  in  Luther  v.  Borden,  7  How.  1. 

Knapp  V.  Thomas,  39  O.  S.  377,  393.  '  Hans  v.  Louisiana,  134  U.  S.  1, 

»  Gibbons  v.  Pepper,  1  Ld.  Raym.  12  ;    Clark  v.  Barnard,    108  U.  S. 

38  ;  Wakeman  v.  Robinson,  1  Bing.  436.     Cf.  De  Sausure   v.  Gaillard, 

213.  127  U.  S.  216  ;  Kentucky  v.  Todd, 

3  Poet,  388,  390,  and  cases  there  9  Ky.  708. 
cited. 


25  RELIEF  BY  CIVIL  ACTION.  §  28 

damno ;  that  is,  there  is  legal  injury,  though  no  appreciable 
loss.  Every  invasion  of  a  legal  right  threatens  the  right 
itself,  and,  to  some  extent,  impairs  the  possessor's  enjoyment 
of  it,  and  is  a  legal  injury,  though  no  actual  loss  has 
resulted.  In  such  case,  unless  the  injury  be  so  trifling  as  to 
fall  within  the  operation  of  the  maxim  de  minimis  non  curat 
lex^t\\Q  injured  party  may  have  an  action,  for  nominal  damages 
at  the  least.  For  example,  if  one  trespass  upon  the  lands 
of  another,  an  action  will  lie,  even  though  no  appreciable 
damage  be  done,  for  it  is  the  wrongful  invasion  of  a  legal  right, 
and  if  allowed  to  continue,  might  grow  into  an  adverse  right. 

An  action  for  a  private  nuisance, — such  as  the  obstruction 
or  diversion  of  a  watercourse,  so  that  it  no  longer  flows  through 
plaintiff's  lands  ;  or  the  projection  of  the  eaves  of  a  house 
over  the  lands  of  plaintiff, — may  be  maintained  before  actual 
damage  has  resulted.  It  is  sufficient  that  a  legal  right  has 
actually  been  invaded;  and  besides,  if  an  action  could  not  be 
maintained  until  after  specific  damage  could  be  shown,  the 
continued  and  uninterrupted  adverse  enjoyment  might,  in 
process  of  time,  become  evidence  of  an  adverse  right.^  One 
entitled  to  vote  at  an  election  has  a  right  of  action  against 
an  officer  who  wrongfully  refuses  to  receive  his  vote,  although 
the  candidates  for  whom  he  wished  to  vote  were  in  fact 
elected.  In  such  case,  the  elector  suffers  no  pecuniary  loss, 
but  his  legal  right  is  infringed,  and  he  is  damnified.^ 

These  instances — of  actual  loss  without  remedy,  and  of 
remedy  without  actual  loss — are  not  anomalous  ;  they  exem- 
plify the  rule,  that  where,  and  only  where,  a  legal  right  has 

1  Axi^.  Lim.  300  ;  1  Suth.  Dam.  thing  ;  for  a  damage  is  not  merely 

766  ;  Wood  Nuis.  97.  pecmiiaiy,  but  an  injury  imports  a 

^  Jeffries    v.  Ankeny,    11    Ohio,  damage,  when  a   man   is  thereby 

372  ;  Ashby  v.  White,  2  Ld.  Raym.  hindered  of  his  right.     In  an  action 

938.    In  this  case.  Holt,  C.  J. ,  said  :  for    slanderous    words,   though    a 

"  If  the  plaintiff  has   a  right,   he  man  does  not  lose  a  penny  by  rea- 

must  of  necessity  have  a  means  to  son  of  the  speaking  of  them,  yet  he 

vindicate  and  maintain  it,  and  a  shall  have  an  action.  ...  So  here 

remedy  if  he  is  injured  in  the  exer-  in  the  principal  case,  the  plaintiff 

cise  or  enjoyment  of  it.  .  .  .  Every  is  obstructed  of  his  right,  and  shall 

injury  imports  a  damage,  though  it  therefore  have  his  action." 
does  not  cost  the  party  one  far- 


§28  PHILOSOPHY  OF  PLEADING.  26 

been  wrongfully  invaded,  the  law  furnishes  a  remedy.^  They 
show,  too,  that  the  ultimate  end  of  the  law  is  the  conserva- 
tion of  rights ;  and  that  indemnity  for  loss  is  subservient 
thereto. 

1  Hutchins  v.  Hutchins,  7  Hill,    407 ;  s.  C.  6  Am.  Rep.  340 ;  Post, 
104;  Kimball.  V.  Harmou,  34  Md.    391. 


CHAPTER  V. 

OF  THE  CAUSE  OF  ACTION. 

29.  Right  of  Action  Defined. — It  has  been  shown  that 
where  there  is  a  legal  right,  there  is  a  remedy  for  its  infrac- 
tion ;  and  that  the  remedy  is  to  be  obtained  by  means  of  an 
action,  in  a  court  of  justice.  Therefore,  when  a  legal  right  is 
wrongfully  infringed,  there  accrues,  ipso  facto,  to  the  injured 
party  a  right  to  obtain  the  legal  remedy,  by  action  against 
the  wrong-doer.  This  secondary  or  remedial  right  is  called 
a  right  of  action.  Jus  persequendi  judicio  quod  sibi  de- 
hetur.^ 

From  this  perfect  correspondence  between  rights  and 
actions,  it  is  plain  that  there  can  be  an  action  only  where 
there  is  a  right ;  for,  to  give  one  an  action  where  no  right  has 
been  infringed,  would  be  to  impinge  upon  the  right  of  another. 
One  reason  for  requiring  pleadings  in  an  action  is,  to  avoid 
using  the  public  force  in  favor  of  a  complainant,  unless  he  is, 
'prima  facie,  entitled  to  it. 

30.  Cause  of  Action  Defined. — The  question  to  be  deter- 
mined at  the  threshold  of  every  action  is,  whether  there  is 
occasion  for  the  state  to  interfere.  Tlierefore,  when  a  suitor 
asks  that  the  public  force  be  exerted  in  his  behalf,  he  must 
show  that  there  is,  prima  facie,  occasion  for  the  state  to  act 
in  his  behalf.  That  is,  he  must  show  a  right  in  himself,  rec- 
ognized by  law,  and  a  wrongful  invasion  thereof,  actual  or 
threatened.  And  since  both  lights  and  delicts  arise  from 
operative  facts,  he  must  affirm  of  himself  such  investitive 
fact  or  group  of  facts  as  will  show  a  consequent  legal  right 
in  him,  and  he  must  affirm  of  the  adversary  party  such  cul- 
patory fact  or  facts  as  will  show  his  delict  with  reference  to 
the  right   so  asserted.     The    formal  statement  of  operative 

»  Hoi.   Jut.  277  ;  Aus.  Jur.  1031-1038. 

27 


g31 


PHILOSOPHY  OF  PLEADING. 


28 


facts  showing  such  right  and   such  delict   shows  a  cause  for 
action  on  the  part  of  tlie  state  and  in  behalf  of  the  complain- 
ant, and  is  called,  in  legal  phraseology,  a  cause  of  action.^ 
31.  Right  of  Action  and  Cause  of  Action  Distinguished. 

— F'rora  the  foregoing  definitions  of  right  of  action  and  cause 
of  action,  it  will  be  seen  that  the  former  is  a  remedial  right  be- 
longing to  some  person,  and  that  the  latter  is  a  formal  state- 
ment of  tlie  operative  facts  that  give  rise  to  such  remedial 
right.  The  one  is  matter  of  right,  and  depends  upon  the 
substantive  law  ;  the  other  is  matter  of  statement,  and  is  gov- 
erned by  the  law  of  procedure.  These  terms,  right  of  action 
and  cause  of  action,  are  therefore  not  equivalent  terms,  and 
can  not  be  used  interchangeably.^     Whether  a  right  of  action 

'  The  phrase,  "  cause /or  action," 
which  expresses  so  exactly  the 
office  of  such  statement  of  opera- 
tive facts,  is,  by  a  figure  of  syntax 
called  enallage,  changed  to  "  cause 
of  action."  The  real  meaning  of 
the  latter  phrase  is  lost,  unless  we 
have  in  mind  the  change  of  the 
preposition  effected  by  the  use  of 
the  figure. 

*  The  distinction  here  made  be- 
tween right  of  action  and  cause  of 
action  is  one  not  found  elsewhere, 
BO  far  as  I  am  aware.  In  some  of 
the  codes  these  terms  are  used  in- 
terchangeably, while  in  some  only 
"cause  of  action  "is  used,  mean- 
ing sometimes  the  remedial  right, 
and  sometimes  the  statement  of 
facts  showing  such  right.  The 
courts  and  the  text-writers  have 
generally  used  them  as  equivalent 
terms. 

Judge  Bliss  says  :  "  As  the  action 
is  a  proceeding  for  the  redress  or 
prevention  of  a  wrong,  the  cause 
of  action  must  necessarily  be  the 
"wrong  which  is  committed  or  threat- 
ened." Code  PI.  1,  151.  I  respect- 
fully suggest  that  this  definition  of 
an  action  is  a  misconception,  and 
that  the  definition  of  cause  of  ac- 


tion,based  upon  it,  is  a  non  sequitur. 
The  ' '  wrong  which  is  committed 
or  threatened  "  may  be  the  "  cause 
of  action"  in  the  sense  that  it  is 
what  immediately  induces  the 
bringing  of  the  action  ;  but  the 
learned  author  does  not  speak  of  it 
as  the  thing  that  moves  the  suitor 
to  act,  but  as  that  which  moves 
the  court  to  act  in  his  behalf. 
The  error  lies  in  a  misconception 
of  the  office  of  an  action.  Pri- 
marily, an  action  is  not  "  for  the 
redress  or  prevention  of  a  wrong  ; " 
it  is  a  proceeding  to  protect  a  right. 
The  basis  of  every  action  is,  a  right 
in  the  plaintiff;  and  the  purpose 
of  the  action  is,  primarily,  to  pre- 
serve such  right.  Subservient  to 
this  primary  object  of  the  action, 
is  compensation  for  infringement 
of  the  right.  In  no  legal  or  logical 
sense  can  it  be  said  that  the  wrong, 
the  infringement  of  a  right,  is  it- 
self the  cause  of  action. 

Mr.  Pomeroy  says  :  "  The  pri- 
mary right  and  duty  and  the  de- 
lict combined  constitute  the  cause 
of  action  ;  they  are  the  legal  cause 
whence  the  right  of  action  springs." 
Again,  he  says  :  "  The  cause  of  ac- 
tion is  what  gives  rise  to  the  reme- 


29  THE  CAUSE  OF  ACTION.  §32 

does  in  fact  exist  in  a  particular  case,  can  be  determined  only 
by  the  result  of  the  action ;  whether  a  cause  of  action  appears, 
is  determinable  by  inspection  of  the  statement  of  operative 
facts.  The  only  precautionary  requirement  that  the  law 
makes,  or  can  make,  is,  that  it  shall  appear,  in  limine,  from 
facts  affirmed  to  be  true,  that  there  is  a  cause  of  action. 

32.  Elements  of  a  Cause  of  Action— It  will  appear, 
without  further  analysis,  that  a  statement  of  facts,  to  con- 
stitute a  cause  of  action,  must  show  a  right  of  action ;  that 
to  show  a  right  of  action,  it  must  state  facts  to  show  (1)  a 
primary  right  and  its  corresponding  duty,  and  (2)  the  in- 
fringement of  this  right  by  the  party  owing  this  duty.  From 
the  one  set  of  facts  the  law  raises  the  primary  right  and 
duty,  and  to  the  other  set  of  facts  the  law  attaches  a  remedial 
right,  or  right  of  action.  For  example,  the  statement  that 
A.  sold  and  delivered  to  B.  a  horse,  for  one  hundred  dollars, 
to  be  paid  in  ten  days,  shows  a  primary  right  in  A.  to  receive 
one  hundred  dollars  at  the  time  fixed  for  payment,  and  the 
corresponding  duty  of  B.  to  make  payment  accordingly.  But 
this  statement  does  not  show  a  right  of  action,  l)ecause  no. 
delict  is.  shown.  If  a  statement  of  facts  be  added,  showing 
that  the  ten  days  have  passed,  and  that  payment  has  not 
been  made,  the  remedial  right  appears  ;  and  the  combined 
statement   is   a   good   cause   of   action,  because    it   shows  a^ 

dial  right,  which  is  evidently  the  453,  519.      Tliis  author,  not  only  in 

same  as  the  term  '  right  of  action,'  these  passages,  but  throughout  his. 

frequently  used  by  judges  and  text-  work,  plainly  uses  "right  of  ac- 

writers.      This  remedial  right,  or  tion"  and   "cause   of    action"  as. 

right  of  action,  does  not  arise  from  equivalent     and     interchangeable 

the  wrongful  act  or  omission — the  terms.     But  he  plainly  shows  that 

delict — of  the  defendant  alone,  nor  "  the  wrong  which  is  committed  or 

from  the  plaintiil's  primary  right  threatened  "  can  not  of  itself  be  the 

and  the  defendant's  primary  duty  cause  of  action, 

alone,  but  from  these  two  elements  This  discrepant  and   inaccurate 

taken  together.     Tlie  '  cause  of  ac-  use  of  these  important  terms  must 

tion,'  therefore,  must  always  con-  tend  to  obscure,  rather  than  to  elu- 

sist  of  two  factors,  (1)  the  plaint-  cidate,  the  principles  of  a  science 

iflf's  primary  riglit,  and  the  defend-  wlierein    clearness    of   conception 

ant's  corresponding  duty,  and  (2)  and  perspicuity   of  statement  are 

the  delict,  or  wrongful  act  or  omis-  most  essential, 
ison  of  the  defendant."    Remedies, 


§33  PHILOSOPHY  OF  PLEADING.  30 

remedial  right  of  A.  against  B.,  growing  out  of  the  violation 
of  a  primary  right  and  duty,  and  it  therefore  shows  a  cause 
for  the  state  to  act  in  behalf  of  A.,  for  the  enforcement  of 
this  antecedent  right  and  duty. 

This  primary  right  and  duty,  and  this  delict  of  the  party 
owing  the  duty,  are  the  two  constituent  elements  of  a  cause 
of  action  ;  and  every  sufficient  statement  of  a  cause  of  action, 
however  simple  or  however  complex,  must  contain  these  con- ' 
stituent  elements.^ 

33.  The  Law  an  Element  of  Rights  of  Action,  but  not 
of  Causes  of  Action. — Primary  rights  and  duties,  and  viola- 
tions of  these,  depend  upon  and  are  governed  by  the  substan- 
tive law.  It  is  these  rights  and  duties,  and  violations  there- 
of, actual  or  threatened,  that  constitute  rights  of  action ;  and 
it  is  the  statement  of  facts  showing  at  once  the  existence  of 
such  primary  right  and  duty,  and  a  violation  thereof,  that 
constitutes  a  cause  of  action.  But  such  facts  are  operative 
only  by  virtue  of  the  substantive  law ;  therefore,  a  statement 
of  facts  constituting  a  cause  of  action  assumes  that  the  in- 
vestitive facts  stated  clothe  the  person  of  whom  they  are 
affirmed  with  a  primary  right  recognized  by  the  substantive 
law,  and  that  the  culpatory  facts  stated  show  a  wrongful 
.invasion  of  such  right. 

A  complete  statement  of  a  right  of  action  would  therefore 
require  a  statement,  not  only  of  the  operative  facts,  but  of 
the  law  that  makes  them  operative.  But  such  statement  of 
the  law  is  needless,  and  is  for  that  reason  excluded  from  the 
definition  of  a  cause  of  action.  In  the  first  place,  the  sub- 
stantive law  is  operative  at  all  times  and  upon  all  persons ; 
it  operates  propria  vigore,  both  out  of  court  and  in  court, 
and  needs  not  to  be  called  into  operation  by  a  statement  of  its 
existence.  In  the  next  place,  the  law  of  procedure  assumes 
that  the  law  is  known  to  those  entrusted  with  its  adminis- 
tration, and  that  they  need  not  be  advised  b}^  a  statement  of 
its  existence.^ 

'  Pom.  Rem.  453,  454.  pleaded  is  not  in  conflict  with  this 

•^  Steph.    PI.    363  ;   Gould  PL  iii.  rule  of    exclusion,    for    tliese    are 

12.     The  requirement  that  private  regarded  as  operative  facts,  to  be 

statutes  and  foreign  laws  are  to  be  pleaded  and  proved.     Post,  184. 


CHAPTER  VI. 

OF  THE  ISSUE. 

34.  The  Altercation  Inter  Partes. — The  ultimate  ob3ect 
of  an  action  is,  to  procure  the  interposition  of  the  court,  as 
the  depositary  of  the  public  force,  for  the  maintenance  of  a 
legal  right ;  and  the  primary  object  of  the  plaintiff's  fiist 
pleading  is,  to  show  to  the  court  that  there  is,  prima  facie, 
cause  for  it  to  act  in  behalf  of  the  complainant,  and  against 
the  party  complained  of.  Another  object  of  such  pleading 
is,  to  advise  the  defendant  of  the  grounds  of  the  complaint 
against  him.  It  follows,  that  one  who  invokes  the  action  of 
a  court  must  do  so  by  a  statement  of  facts  showing,  prima 
facie,  a  riglit  of  action  in  himself  against  the  one  complained 
of.  Such  ex  parte  showing  does  no  more,  in  the  first  in- 
stance, than  to  give  the  complainant  a  right  to  the  process  of 
the  court,  for  the  purpose  of  bringing  his  adversary  into 
court,  and  subjecting  him  to  its  jurisdiction.  The  philosophy 
of  this  application  having  already  been  shown,  it  remains  to 
set  forth  the  philosophy  of  the  judicial  altercation  that  may 
follow,  and  that  results  in  the  ascertainment  of  the  question 
for  decision. 

When  in  court,  the  party  complained  of  has  a  right  to  con- 
test the  claim  of  his  adversary.  This  he  may  do  in  three- 
ways  :  First,  by  denying  the  legal  sufficiency  of  the  facts, 
stated,  to  authorize  the  interposition  of  the  court  ;  secondly,, 
by  denying  the  truth  of  the  facts  so  stated  ;  and  thirdly,  by 
stating  other  facts  that  make  those  stated  by  the  complainant 
inoperative.  When  he  questions  the  legal  sufficienc}^  of  the 
facts  stated,  he  is  said  to  demur  [demoror,  to  delay]  ;  and 
when  he  denies  their  truth,  or  states  other  facts  to  avoid 
their  operation,  he  is  said  to  answer} 


1  Steph.  PI.  134,  136. 


31 


§  35  PHILOSOPHY  OF  PLEADING.  32 

35,  Insufficiency  of  Facts  Stated. — The  substantive 
law  is  a  constituent  element  of  rights,  and  of  rights  of  action, 
and  though  its  existence  is  neither  to  be  stated  nor  denied 
in  any  pleading,  yet  every  allegation  of  facts  assumes  that 
the  substantive  law  makes  such  facts  operative  to  invest  some 
one  with  a  right,  or  to  divest  some  one  of  a  right.  The  ulti- 
mate question  to  be  determined  in  a  civil  action  is,  whether 
the  public  force  shall  be  used  in  behalf  of  one  party  to  compel 
some  act  or  forbearance  on  the  part  of  the  other ;  that  is, 
whether  one  party  has  a  right  of  action  against  the  other; 
and  at  every  stage  of  the  action,  whatever  the  state  of  the 
pleadings,  an  inquiry  whether  the  pleadings,  as  they  stand, 
will  warrant  such  interposition  is  both  pertinent  and  impend- 
ing— matter  of  substantive  law  not  being  admitted  by  any 
pleading,  or  state  of  pleading. 

When  a  party  complained  of  denies,  by  demurrer,  the  legal 
sufficiency  of  the  facts  stated  by  his  adversary,  he  simply 
presents  the  question  whether  the  facts  stated,  if  true,  con- 
stitute a  cause  of  action  against  him ;  and  he  asks  and  awaits 
the  judgment  of  the  court  thereon. 

Such  demurrer  does  not  dispute  the  facts  stated ;  but,  for 
tbe  purpose  of  obtaining  the  judgment  of  the  court  as  to  their 
legal  effect,  it  admits  them  to  be  trufe.  Such  demurrer  dis- 
putes the  assumed  legal  operation  of  the  facts  stated.  It 
raises  an  issue  in  law,  but  not  an  issue  of  law.  The  demurrer 
may  lead  to  an  oral  altercation  as  to  what  the  law  is,  but  it 
does  not  make  an  issue  as  to  what  the  law  is.  It  questions 
the  assumed  effect  of  the  law  as  it  is,  and  of  the  facts  as 
alleged.^ 

1  Some  writers  treat  a  statement  Breach  of  promise  to  give  prop- 
of  facts  constituting  a  cause  of  erty  to  another  renders  the  prom- 
action  as  part  of  a  logical  formula,  isor  liable  in  damages  to  the  prom- 
whereof  an  assumed  proposition  of  isee.  2.  Minor  Premise. — A.  agreed 
law  is  the  major  premise.  For  ex-  to  give  B.  a  certain  horse,  and  after- ' 
ample,  if  the  statement  be,  that  A.  ward  refused  to  deliver  him.  3. 
agreed  to  give  B.  a  horse,  worth  Conclusion. — Therefore,  A.  is  Uable 
one  hundred  dollars,  but  now  re-  to  B.  in  damages.  A  demurrer  to 
fuses  to  deliver  him,  to  the  damage  such  statement  is  said  to  deny  the 
of  B.,  the  following  syllogism  is  legal  proposition  involved,  and 
involved  :    1.     Major    Premise. —  thus  make  an  issue  of  law.     Gould 


33  THE  ISSUE.  §§  36-38 

36.  Denial  of  Truth  of  Facts  Stated.— The  legal  suffi- 
ciency of  the  facts  stated  being  admitted,  or  being  adjudged 
on  demurrer,  the  party  against  whom  they  are  alleged  may 
deny  that  the  facts  stated  are  true.  Such  denial  may  be 
general,  that  is,  a  denial  of  each  and  every  operative  fact 
stated ;  or  it  may  be  special,  that  is,  a  denial  of  any  one  or 
more  of  such  facts.  A  denial,  whether  general  or  special, 
presents  an  issue  in  fact.  If  it  be  general,  it  rests  the  con- 
tention upon  any  and  all  of  the  facts  stated ;  if  it  be  special 
it  limits  the  contention  to  the  particular  fact  or  facts  denied. 

37.  Statement  of  New  Matter. — To  entitle  a  suitor  to 
relief  by  civil  action,  not  only  must  his  statement  of  facts  be 
sufBcient  in  law,  and  true  in  fact,  but  there  must  not  be 
antagonistic  or  divestitive  facts  that  render  those  stated  by 
him  inoperative.  Therefore,  if  the  statements  of  complainant 
be  both  sufficient  in  law  and  true  in  fact,  his  adversary  may 
contest  his  right  to  relief  by  a  statement  of  new  facts  that 
render  inoperative  those  stated  by  the  other  party.  This 
statement  of  new  matter  tenders  no  issue.  It  simply  avoids 
the  operation  of  the  statment  to  which  it  is  opposed,  and  may 
in  turn  be  met  by  demurrer  or  by  answer.^ 

38.  Demurrer,      Denial,    and     Avoidance    Distin- 

Pl.    i.    7,     8,    9  ;    Bliss     PL     137,  may  be  because  the  pleader  has 

404.  mistaken  the  law,  or  has  miscalcu- 

Tliis  analysis  proceeds  upon  the  lated  the  legal  effect  of  his  facts  ; 

assumption  that  a  proposition  of  and  a  demurrer  questions,    not  a 

law  may  be  controverted  in  the  proposition  of  law,  but  the  assumed 

pleadings.     This  is  a  false  assump-  legal  operation  of  the  facts.     It  is 

tion ;    and    it    perverts    the    true  not  the  province  of  the  pleadings 

theory  of  pleading.     The  substan-  to  present  an  issue  as  to  what  the 

tive  law  is  both  certain  and  stable  ;  law  is,  but  to  formulate  a  conten- 

and  the  rules  of  pleading  rest  upon  tion  as  to  the  facts  ;  either  as  to 

this  fact.     The  true  theory  is,  not  what  the  facts  are,  or  as  to  their 

that  a  statement  of  facts  implies  a  legal  effect.     A  demurrer  to   the 

proposition  of  law  that  will  make  statement  of  facts  before  supposed 

such  statement  operative,  but  that  should  be  overruled  ;  because,  the 

the  pleader  assumes  that  his  state-  law  being  that  a  mere  promise  to 

ment  of  fact  is  operative  under  the  give  creates  neither  right  nor  obli- 

law  as  it  is.     The  assumption  re-  gation,   the    facts    stated    do    not 

lates,  not  to  what  the  law  is,  but  show  a  remedial  right  of  B.  against 

to  the  legal  effect  of  the  facts.     If  A.     Ante,  32. 

the  facts  stated  are  insufficient,  it  ^  Post,  236. 
3 


§  39  PHILOSOPHY  OF  PLEADING.  34 

guished. — It  is  important  to  note  the  distinction  between 
demurrer  and  answer,  and  between  denial  and  avoidance.  A 
demurrer  is  always  founded  upon  what  is  stated  in  the  plead- 
ing to  which  it  is  opposed,  and  which,  for  the  purpose  of 
the  demurrer,  is  admitted  to  be  true  ;  while  an  answer  is 
always  founded  on  a  denial  of  such  matter,  or  on  matter 
of  fact  collateral  thereto.  In  other  words,  a  demurrer  ques- 
tions only  the  cause  of  action  ;  while  an  answer  questions  only 
the  riglit  of  action. 

An  answer  by  way  of  denial  always  presents  an  issue, 
and  limits  the  contention  to  one  or  more  of  the  facts  stated 
in  the  pleading  to  which  it  is  opposed  ;  while  an  answer  of 
new  matter  makes  no  issue,  and  diverts  the  contention  from 
the  facts  stated  in  the  opposite  pleading,  to  those  contained 
in  such  answer. 

39.  Retrospective  and  Prospective. — In  these  intro- 
ductory chapters,  presenting  a  general  view  of  pleading,  a 
compendious  view  of  private  rights,  the  correlation  of  facts 
and  rights,  the  function  of  courts,  and  the  prerequisites  for ' 
.their  action,  the  object  has  been  to  outline,  in  their  natural 
and  orderly  sequence,  the  elemental  principles  which  form 
the  groundwork  of  pleading. 

As  a  science,  pleading  is  both  inductive  and  deductive.  It 
is  inductive  in  that  its  general  principles  are  drawn  from  the 
nature  of  private  rights  and  the  general  laws  of  argument  ; 
it  is  deductive  in  its  application  of  these  general  principles 
to  particular  cases.  It  is  not  a  compilation  of  positive  and 
arbitrary  rules  ;  it  is  a  system  of  consistent  and  rational 
principles,  drawn  from  personal  and  property  relations  in 
their  integrity,  and  adapted  to  the  administration  of  justice 
in  particular  cases  of  violence  to  these  relations;  and  its 
methods  are  grounded  upon  the  nature  of  rights,  and  the 
logic  of  procedure,  as  these  have  been  outlined  in  the  pre- 
ceding pages. 

But  the  philosophical  order  is  not  the  historical  order. 
The  science  of  pleading  was  not  a  preconception ;  it  is  the 
result  of  experience  and  learning,  and  has  been  developed 
in  the  long  course  of  judicial  procedure.  The  principles  of 
the  science  have  been  developed  at  irregular  intervals,  and 


35  THE  ISSUE.  §  39 

are  historically  separated ;    the    philosophy  of  the  science 
groups  and  arranges  them. 

Before  proceeding  to  an  explication  of  the  more  practical 
parts  of  this  science,  it  will  be  profitable  to  turn  aside  and 
study  its  historical  development ;  for  the  Reformed  Proced- 
ure is  so  correlated  to  the  older  systems,  and  they  to  each 
other,  that  an  understanding  of  their  essential  principles  and 
their  historical  development  is  requisite  to  a  clear  compre- 
hension and  intelligent  application  of  the  reformed  system. 
However  much  different  systems  of  procedure  may  differ  in 
matters  of  arbitrary  and  positive  provision,  the  general  prin- 
ciples upon  which  the  truth  of  contested  facts  is  to  be  inves- 
tigated must  be  common  to  all ;  and  it  is  true  in  this,  as  in 
other  departments  of  jurisprudence,  that  in  order  to  know 
what  the  law  is,  we  should  know  what  it  has  been,  and  what 
it  tends  to  become.^ 

1  Holmes  Com.  Law,  1. 


PART  II. 

HISTORY    OF    PLEADING. 


CHAPTER  VH. 
PROCEDURE  UNDER  THE  ROMAN  CIVIL  LAW. 

40.  The  Roman  Judiciary. — The  subject  of  procedure 
among  the  Romans  is  curious,  rather  than  useful ;  yet  some 
knowledge  of  it  will  be  helpful  in  understanding  the  later 
'systems,  and  some  account  of  it  is  requisite  in  an  historical 
treatment  of  pleading.  The  procedure  in  the  English  eccle- 
siastical courts,  the  immediate  source  of  our  equity  proced- 
ure, was  modeled  upon  that  of  the  civil  law.  Of  procedure 
under  the  regal  government,  but  little  is  known.  After  the 
expulsion  of  the  Tarquins,  509  B.  C,  and  the  establishment 
of  the  consular  government,  the  duties  of  the  supreme 
judicial  office  devolved  upon  the  Praetor,  an  elective  func- 
tionary, chosen  annually,  and  who,  in  addition  to  his  judicial 
powers,  had  an  undefined  supremacy  over  law  and  legislation.^ 
The  Prsetor,  who  was  generally  a  lawyer,  was  required,  on 
commencing  his  term  of  office,  to  publish  an  edict,  setting 
forth  in  what  cases  and  in  what  manner  he  would  grant 
relief  to  suitors.     These  annual  proclamations  were  generally 

'  There  were  two    Praetors — the  his  court  in   the  Forum,   wore  a 

Prcetor    Peregrinus,   who    admin-  white  robe  bordered  with  purple, 

istered  justice  in  matters  wherein  sat  in  a  chair  of  state,  and  was  at- 

foreigners  were  concerned,  and  the  tended  by  lictors.     In  addition  to 

Prcetor  Urbanus,  who  administered  his  judicial  powers,  and  his  right 

justice  between  citizens  only.     The  to  publish  edicts,  he  was  invested 

office  of  the  latter  was  regarded  as  with  the  imperium,  or  military  com- 

the  more  important  and  the  more  mand.    Anth.  Rom.  Antiq.  67,  81  ; 

honorable.     In  dignity,  the  Prastor  Mack.  Rom.  Law  (5th  ed.)  338. 
was  next  to  the  Consul.     He  held 

36 


37  CIVIL-LAW  PROCEDURE.  §41 

a  republication  of  the  last  preceding  edict,  with  some  altera- 
tions or  amendments  providing  for  cases  not  theretofore  pro- 
vided for,  introducing  new  forms  of  action,  and  regulating 
the  mode  of  procedure.  This  incondite  edictal  law,  thus 
amplified  each  year,  soon  became  the  chief  guide  in  matters 
of  legal  right  and  of  legal  procedure.^  In  this  way  the 
Praetor  gradually  came  to  be  governed,  in  a  measure,  by  pre- 
established  general  rules  ;  and  the  administration  of  justice 
partook  more  and  more  of  uniformity  and  certainty.  There 
began  to  grow  up  a  body  of  rules  and  precedents  for  the 
guidance  of  the  judiciary,  and,  indirectly,  for  the  security  of 
the  people ;  and  these,  at  length,  took  the  form  of  positive 
law,  and  became  a  nucleus  for  commentaries  and  judicial 
exposition  .2 

41.  Bringing  the  Defendant  into  Court.  —  In  all 
systems  of  procedure,  the  appearance,  actual  or  constructive, 
of  the  defendant  in  court  is  necessary  to  give  the  court  juris- 
diction of  his  person.  The  mode  of  procuring  his  appear- 
ance, whether  voluntary  or  compulsory,  and  the  stage  of  the 
proceeding  at  which  he  is  to  be  brought  in,  differ  in  the 
different  systems  of  procedure.  Under  the  civil  law,  the 
complaining  party  ordered  his  adversary  to  go  with  him 
before  the  Prsetor.  This  was  called  vocatio  in  jus,  or  sum- 
moning into  court.  If  the  accused  refused  to  go  with  his 
accuser,  the  latter  called  a  witness  to  the  fact.  If  lie  con- 
cealed himself  to  elude  the  prosecution,  he  was  summoned 
by  the  voice  of  a  herald,  or  by  the  Praetor's  edict ;  and  if  he 
still  did  not  appear,  the  cause  proceeded  without  his  pres- 
ence.^ 

'  Anth.    Rom.  Antiq.  83  ;  Maine  interpreters  ;  afterward,  this  func- 

An.  Law,  59  et  seq.  tion  devolved  upon  the  college  of 

'  Cush.  Rom.  Law,  167.    The  laws  pontiffs,  until  about  300  B.  C.  when 

of  the  twelve  tables,  compiled  about  Flavius  published  a  code  of  forms 

450    B.    C,    though    engraved  on  for   legal    proceedings,   called   ac- 

brass,  and  set  up  in  a  public  place,  tiones  leges.     This  gave   rise  to  a 

in  order  that  every  one  might  know  body  of  professional  expounders  of 

his  rights,  were  so  brief  and  con-  the  law,  called  Jurisconsults.  Cush. 

cise    as    to    render   interpretation  Rom.    Law,    108,    120,    168 ;  Mack, 

necessary.     At  first,  the  decemvirs,  Rom.  Law  (5th  ed.)  427. 

who  had  compiled  them,  were  the  ^  Anth.  Rom.  Antiq.  161  ;  Taylor's 


§42  HISTORY  OF  PLEADING.  38 

42.  Modes  of  Trial. — In  matters  of  little  importance, 
the  Praetor  decided  without  formalit; ,  and  at  any  time  or 
place  ;  but  in  all  other  cases,  proceedings  before  the  Prsetor 
were  conducted  according  to  prescribed  forms.^  In  the  trial 
of  causes,  the  Praetor  announced  and  applied  the  law,  while 
the  questions  of  fact  were  decided  either  by  a  single  judex^ 
or  by  a  number  of  judices.  The  Roman  Praetor  performed 
the  office  of  judge,  while  the  judex  performed  the  functions 
of  a  jury.^  This  procedure,  known  as  the  formulary  system, 
and  which  bears  strict  analogy  to  a  trial  at  common  law, 
before  a  judge  and  jury,  was  the  ordinary  jurisdiction  of  the 
Praetor,  and  required  a  rigid  adherence  to  prescribed  forms. 

In  the  course  of  time,  however,  there  grew  up  an  extra- 
ordinary  jurisdiction,  in  the  exercise  of  which  the  Praetor 
decided  both  the  law  and  the  facts,  without  the  aid  of 
Judices,  with  less  regard  for  prescribed  forms,  and  with  more 
regard  for  conscience,  justice,  and  right.  In  this  way  sum- 
mary relief  was  afforded  in  many  cases  that  were  before 
remediless,  threatened  wrongful  acts  were  restrained,  former 
positions  were  restored,  fraudulent  transactions  were  set 
aside,  infants  were  protected,  and  trusts  were  enforced. 
This  extraordinary  equitable  procedure  so  reacted  upon  the 
ordinary  legal  jurisdiction  that,  during  the  reign  of  the 
Emperor  Diocletian,  A.  D.  294,  it  was  abolished,  and  the 
equitable  procedure — which  is  clearly  the  prototype  of  our 
court  of  chancery — became  the  exclusive  mode  of  trial  in  the 
Roman  empire.^ 

Glossary,  "  Vocatio  in  jus,"  note;  law,  ,n.  rormulary system,  and  the 

Mack.  Rom.  Law  (5th  ed.)  348.  system  of  extraordinary  procedure, 

^  Anth.  Rom.  Antiq.  84  ;    Pom.  — and  says,  that  during  the  preva- 

Rem.  12.  lence  of  the  formulary  system  great 

*  The  Jttdea;  was  not  a  magistrate,  imiiortance  was   attached    to  the 

holding  jurisdiction  ;  he  was  a  dele-  distinction  between  actions  stricti 

gated  functionary,  invested  by  the  juris  and  actions  bonce Jidei.   Under 

Praetor  with  judicial  power  in  a  the  former,  the  powers  of  the  judge 

particular  cause  only.    Mack.  Rom.  were  limited  to  the  strict  letter  of 

Law  (5th  ed.)  339.  the  law;    while  under  the  latter, 

^  Pom.  Rem.  12,  14  ;  Cush.  Rom.  more  latitude  was  allowed,  and  full 

Law,    128.     Lord    Mackenzie    de-  effect  given    to  considerations   of 

scribes  the  three  successive  systems  equity.     Mack.  Rom.  Law  (5th  ed.) 

of  procedure, — the  actions  of  the  347,  358. 


39  CIVTL-LAW  PROCEDURE.  g43 

43.  Pleadings  Under  the  Roman  Law. — The  nameri 
of  the  several  pleadings  under  this  system  of  procedure 
were,  the  libel,  the  exception,  the  replication,  the  duplica- 
tion, the  triplication,  and  so  on.  In  the  libel,  the  plaintiff — 
or  actor ^  as  the  complainant  was  called — stated  the  legal 
nature  of  his  claim,  and  the  relief  sought.  He  was  not 
required  to  state  the  facts  upon  which  he  based  his  action, 
but  simply  to  identify  his  claim,  so  as  to  enable  the  defend- 
ant— or  reus^  as  the  adversary  party  was  then  called — to 
determine  whether  he  would  resist  it.  All  subsequent  plead- 
ings were  required  to  allege  new  matter  in  avoidance  ;  no 
denial  being  required  or  allowed  in  any  pleading. 

If  the  defendant  wished  to  contest  the  suit,  he  appeared  in 
court  and  stated  orally  that  he  denied  the  truth  of  the  libel. 
This  ceremony,  called  the  litis  contestation  put  the  plaintiff 
to  the  proof  of  his  libel.  If  the  defendant  desired  also  to 
set  up  new  matter  as  a  defense  to  the  plaintiff's  claim,  he 
pleaded  an  exception,  containing  a  brief  statement  of  the 
legal  nature  of  such  defense.  The  exception  was  in  like 
manner  followed  by  the  replication,  and  so  on,  until  the 
pleadings  were  ended.  When  the  defendant  wished  to 
avail  himself  of  a  dilatory  plea, — one  that  did  not  go  to  the 
merits, — he  pleaded  his  exception  before  the  litis  contestatio 
took  place ;  and  if,  upon  trial  of  this  plea,  it  was  decided 
against  the  defendant,  the  litis  contestatio  then  took  place, 
and  he  was  allowed  to  plead  an  exception  going  to  the 
merits.^ 

This  system  of  pleading  did  not  aim  at  the  production  of 
an  issue.  The  object  was  only  to  bring  before  the  court  tbe 
affirmative  claims  of  the  parties.  Wlien  either  party  could 
not  allege  new  matter  in  answer  to  his  adversary's  claim,  the 
pleadings  terminated ;  but  no  pleading  was  treated  as  ad- 
mitted by  failure  to  answer  it/'' 

There  was  no  demurrer,  but  before  a  pleading  could  be 
pleaded,  it  had  to  be  submitted  to  the  Praetor,  who  ordered  it 
admitted,  rejected,  or  amended,  as  the  case  might  require ; 

1  Lang.  Eq.  PL  13.  »  Lang.  Eq.  PL  7  ;  Steph.  PL  495, 

uotti  54. 


g44  HISTORY  OF  PLEADING.  40 

but,  unlike  a  judgment  on  demurrer,  such  order  did  not  ter- 
minate the  action.  If  the  pleading  was  rejected,  the  party 
might  plead  another,  or  go  to  trial  as  though  he  had  not 
offered  the  defective  plea.^  If  the  libel  was  manifestly  un- 
just, or  was  against  one  who  could  not  be  proceeded  against, 
or  was  brought  at  too  late  a  period,  or  was  vitiated  by  some 
other  objection  apparent  on  its  face,  the  Pisetor  might,  sua 
sponte,  refuse  to  take  cognizance  of  the  case.^ 

44.  Conduct  of  the  Trial. — As  no  denial  was  required  in 
the  pleadings,  and  as  nothing  was  admitted  by  failure  to 
answer,  the  parties  were  required  to  prove,  in  turn,  their 
successive  affirmative  pleas.  The  plaintiff  put  in  his  evidence 
in  support  of  the  claim  stated  in  his  libel,  and  the  defendant 
offered  his  evidence  in  contradiction  thereof.  The  defendant 
then  put  in  his  evidence  in  support  of  the  defense  stated  in 
his  exception,  and  the  plaintiff  offered  his  evidence  in  con- 
tradiction ;  and  so  the  trial  proceeded,  to  the  end  of  the 
pleadings,  each  party  having  the  burden  of  proof  as  to  his 
own  pleading.  When  the  evidence  was  all  in,  and  the 
advocates  had  been  heard,  the  judge  examined  the  evidence 
in  the  order  of  its  introduction.  If  he  found  the  libel  not 
proved,  judgment  was  entered  against  the  plaintiff.  If  he 
found  the  libel  proved,  he  proceeded  to  examine  the  evidence 
upon  the  exception,  and  so  on  to  the  end  of  the  pleadings ; 
judgment  being  entered  against  the  party  who  first  failed  in 
his  proof.  If  all  the  pleas  were  sustained,  judgment  was  en- 
tered for  the  party  who  filed  the  last.  When  the  defendant 
had  pleaded  a  dilatory  plea,  the  trial  began  with  the  excep- 
tion instead  of  the  libel ;  and  if  decided  against  the  defend- 
ant, the  litis  contestatio  took  place,  and  the  pleadings  and 
trial  as  to  the  merits  proceeded  as  though  no  dilatory  plea 
had  been  interposed.  The  sole  purpose  of  the  defendant's 
pleas  being  to  defeat  the  libel  on  grounds  independent  of  its 
truth,  and  the  object  of  the  plaintiff's  subsequent  pleas  being 
only  to  resist  such  purpose,  judgment  in  the  case,  no  matter 
upon  what  plea  the  decision  turned,  was  always  based  upon 

»  Lang.  Eq.  PI.  6.  »  Anth.  Rom.  Antiq.  167. 


41  CIVIL-LAW  PROCEDURE.  §45 

the  libel,  and  was  either  that  the  plaintiff  recover,  or  that  the 
libel  be  dismissed.^ 

45.  Positions  and  Articles. — About  the  thirteenth  cent- 
ury, an  important  change  was  introduced  into  the  civil-law 
procedure,  whereby  all  the  testimony  was  required  to  be  taken 
and  reduced  to  writing  before  the  trial,  and  each  party  was 
given  the  right  to  examine  his  adversary.  When  the  plead- 
ings were  completed,  if  either  party  desired  to  examine  his 
adversary,  he  made  u  written  statement,  in  numbered  para- 
graphs called  positions,  of  such  facts  in  support  of  his  own 
pleadings  as  he  supposed  to  be  within  the  knowledge  of  his 
adversary.  After  these  positions  had  been  inspected  and 
approved  by  the  judge,  the  adverse  party  was  required  to 
answer  them  in  writing  and  under  oath.  As  to  all  facts 
admitted  by  these  answers,  the  party  answering  was  con- 
cluded, and  the  adverse  party  was  relieved  from  making 
proof. 

Then  each  party  prepared,  in  numbered  paragraphs  called 
articles,  a  statement  of  the  facts  he  expected  to  prove  by 
witnesses.  These  were  likewise  answered  in  writing,  and  as 
such  answers  were  evidence  against  the  adverse  party,  he 
was  allowed  to  cross-examine  the  witnesses.  In  the  course 
of  time,  the  positions  and  articles  were  combined  in  one 
document,  each  paragraph  being  made  both  a  position  and  an 
article,  and  such  as  were  not  admitted  by  the  adverse  party 
were  afterward  proved  by  witnesses.  In  some  jurisdictions 
these  positions  and  articles  were  likewise  combined  with  the 
pleadings  in  the  cause,  so  that  each  pleading  contained  not 
only  the  claim  or  defense  relied  upon,  but  a  detailed  state- 
ment of  the  evidence  by  which  it  was  to  be  proved.  This 
amplitication  of  the  pleadings  was  the  uniform  practice  in  the 
English  ecclesiastical  courts,  whose  procedure  was  modeled 
upon  that  of  the  civil  law,  and  was  the  immediate  source  of 
our  equity  procedure.^ 

»  Lang.  Eq.  PI.  8,  11,  13.  »  Lang.  Eq.  PI.  14,  21,  23,  34 


CHAPTER  VIII. 

COMMON-LAW  PROCEDXJKE. 
GENERAL   VIEW   OF  THE   SYSTEM. 

46.  (xrowth  and  Bevelopment. — About  the  latter  part 
of  the  thirteenth  century,  the  judges  of  the  common-law 
courts  of  England  began  systematically  to  prescribe  and 
enforce  rules  of  statement  in  pleading.  Prior  thereto,  the 
pleadings  had  been  very  imperfectly  regulated ;  duplicity 
and  argumentativeness  were  common,  and  the  pleadings  were 
not  always  directed  to  the  development  of  an  issue.  But 
from  that  time  the  manner  of  allegation  was  methodically 
and  industriously  cultivated  by  the  judges  ;  and  the  wisdom 
of  their  suggestions,  and  the  utility  of  their  requirements, 
were  so  generally  perceived  and  sanctioned,  that,  with  noth- 
ing to  commend  them  but  their  fitness  to  promote  the  judicial 
inquiry,  they  were  gradually  accepted,  and  finally  grew  into 
a  connected  and  scientific  system  of  pleading. 

For  more  than  five  hundred  years  this  system  of  procedure, 
emanating  from  the  wisdom  of  the  common-law  judges,  was 
the  boast  and  the  pride  of  the  English  Bencli  and  Bar. 
They  not  only  lavished  their  encomiums  upon  it,  they  con- 
centrated their  ingenuity,  their  learning,  and  their  experi- 
ence, in  endeavor  to  refine  and  mature  it.  Their  love  of 
subtlety  and  refinement  led  to  the  introduction  of  much  that 
was  formal,  technical,  and  artificial.  Numerous  statutes  were 
from  time  to  time  passed  by  parliament  to  remedy  these 
technical  inconveniences.  By  these  procedure  acts,  as  they 
were  called,  and  by  the  rules  of  court  made  under  their  pro- 
visions, the  system  was  somewhat  simplified,  and  to  some 
extent  relieved  from  the  perplexity  of  over-refinement. 

The  common-law  system  was  based  upon  sound  and  endur- 
ing principles,  and,  in  its  finished  form,  was  a  marvel  of  in- 

42 


43  COMMON-LAW  PROCEDURE.  §47 

ventive  genius,  and  a  model  of  logical  exactness.  It  bears 
such  relation  to  the  reformed  procedure,  that  a  comprehen- 
sive outline  of  the  system — its  distinguishing  principles  and 
methods,  its  perfections  and  its  imperfections,  its  sources  and 
its  tendencies — is  both  helpful  and  needful  in  the  elucidation 
of  the  Reformed  Procedure.  The  purpose  of  this  outline  is 
twofold  :  it  sets  forth  the  common-law  procedure  as  a  com- 
plete and  coherent  system,  and  it  shows  the  origin  and  the 
office  of  many  rules  that  are  retained  in  the  reformed  system. 

47.  The  Value  of  Precedents. — The  common  law  of 
England  differs  widely,  in  its  administrative  principles,  from 
the  civil  law  of  Rome.  In  the  former,  controlling  weight  is 
given  to  precedents  ;  in  the  latter,  prior  decisions  have  a  less 
fixed  and  certain  operation.  Under  the  common  law,  there 
is  certainty,  with  a  corresponding  stability  of  rights  and 
obligations  ;  under  the  civil  law,  tliere  is  a  degree  of  uncer- 
tainty, because  less  respect  is  paid  to  precedents.^  A  corre- 
sponding difference  is  found  in  their  modes  of  procedure. 
The  common-law  procedure  aims  at  precision  and  certainty, 
and  the  very  highest  regard  is  paid  to  technical  forms, 
because  they  are  regarded  as  precedents.  Approved  forms 
embody  principles,  and  the  certainty  of  the  principle  is  fixed 
and  assured  by  adherence  to  the  form  which  embodies  it. 
Hence,  actions  are  distinctly  classified,  and  every  action  was 
required  strictly  to  conform  to  the  established  precedents  for 
such  action.  This  adherence  to  precedents,  with  its  con- 
sequent uniformity,  certainty,  and  security,  is  a  distinguish- 
ing characteristic  of  the  common-law  procedure. 

This  devotion  to  form  had  its  evils,  as  well  as  its  benefits. 
As  forms  were  the  embodiment  of  principles,  and  as  it  was 
easier  to  adhere  to  forms  than  to  dispute  about  principles  and 
their  application,  matters  of  form  so  grew  in  importance  that 
principle  Avas  sometimes  lost  sight  of.  This  devotion  to 
form,  and  the  consequent  disregard  of  substance,  often  per- 
plexed and  prolonged  litigation,  sometimes   led  to  a  failure 

^  Steph.  PL  (Tyler's  edition)  10-14.  Andrews'  edition,  unless  some  other 
The  references  herein  to  "  Stephen  edition  is  designated  in  the  refer- 
on  Pleading"  are  to  the  pages  in    euoei 


g§  48-49  HISTORY  OF  PLEADING.  44 

of  justice,  and  finally  became  a  just  ground  of  reproach  to  the 
system. 

48.  Development  of  an  Issue. — One  object  of  pleading  is 
to  ascertain  the  question  for  trial  and  decision.  The  com- 
mon-law procedure  ascertains  this  by  requiring  the  alternate 
pleadings  to  be  so  constructed  as  to  finally  present  some  point 
distinctly  affirmed  on  one  side,  and  distinctly  denied  on  the 
other.  When  the  point  in  controversy  has  in  this  way  been 
ascertained,  the  pleadings  are  ended,  and  the  parties  are,  i|i 
legal  parlance,  said  to  be  at  issue. 

The  civil  law  did  not  aim  at  the  production  of  an  issue  by 
the  pleadings,  nor  did  it  require  the  pleadings  to  show  dis- 
tinctly the  decisive  matter  in  controversy.  In  that  system 
the  object  of  the  pleadings  was  simply  to  give  notice,  to 
parties  and  to  the  court,  of  the  affirmative  claims  of  the 
parties.  In  a  trial  under  the  civil-law  procedure,  inasmuch 
as  nothing  was  admitted  by  failure  to  deny,  there  might  be 
as  many  stages  as  there  were  pleadings  in  the  case,  because 
the  affirmative  claim  set  out  in  each  pleading  had  to  be 
separately  tried.  But  at  common  law,  all  the  material  alle- 
gations not  denied  by  the  party  against  whom  they  are 
made  are  taken  as  admitted,  and  need  not  be  proved  ;  there 
is,  therefore,  properh'-  but  one  stage  of  the  trial — the  trial  of 
the  issue. 

This  requirement  oj  the  common-law  procedure,  that  the 
pleadings  shall  produce  an  issue  decisive  of  the  controversy, 
is  broad  and  comprehensive  in  its  effects,  and  has  led  to  the 
establishment  of  numerous  subsidiary  rules,  which  will  be 
considered  in  a  subsequent  chapter  of  this  division. 

49.  Forms  of  Action. — In  the  development  of  its  system 
of  procedure,  the  common  law  sought  to  adapt  its  remedies  to 
the  diversified  natures  of  the  various  injuries  cognizable  by 
its  courts.  Since  an  actionable  injury  is  but  the  invasion  of 
a  legal  right,  the  plain  and  natural  remedy  for  a  particular 
injury  is  either  the  restoration  of  the  right  invaded,  or,  if 
restoration  be  impracticablp,  an  award  of  its  legal  equivalent 
in  damages.  The  common  law  furnishes  these  remedies  by 
means  of  a  diversity  of  actions,  each  founded  upon  the  nature 
of  the  particular  right  invaded  ;  and  it  is  strict  in  the  require- 


4-5  COMMON-LAW  PROCEDURE.  §50 

ment  that   an   injury  shall  be  redressed  only  by  its  proper 
form  of  action. 

By  "  foini  of  action  "  is  meant  the  peculiar  technical  mode 
of  framing  the  pleadings  according  to  the  nature  of  tlie  par- 
ticular injury  to  be  redressed.  It  is  a  peculiar  form  of  ex- 
pression appropriated  by  uniform  and  established  practice  to 
a  chiss  of  actions,  and  so  made  a  distinguishing  chaiacteristic 
of  such  class.  The  policy  of  this  enforced  practice  of  sepa- 
rating actions  into  classes,  by  means  of  forms  of  action,  is,  to 
define,  with  some  certainty,  tlie  nature  of  those  injuries  for 
which  the  law  will  afford  redress;  to  give  the  defendant 
some  notice,  from  the  very  commencement  of  the  suit,  of  the 
nature  of  the  complaint ;  to  preclude  the  plaintiff  from 
changing  entirely  the  ground  at  first  taken  by  him  ;  and 
to  enable  the  court  readily  to  apply  to  the  case,  as  it  pro- 
gresses, its  appropriate  rules  of  pleading,  of  evidence,  and  J 
of  practice. 

This  classification  of  the  subjects  of  litigation,  and  the 
allotment  to  each  class  of  an  appropriate  formula  of  complaint, 
was  one  of  the  earliest  refinements  in  forensic  science.  It 
was  not  a  mere  arbitrary  device,  it  was  adopted  to  insure 
singleness  and  certainty  in  judicial  proceedings,  and  con- 
sequent; saiety  to  suitors ;  it  was  the  product  of  great  learning 
and  experience,  and  had  the  sanction  of  long  use  and  ac- 
knowledged adaptation  for  the  safe  and  certain  administration 
of  justice.  The  common-law  courts  have  gone  so  far  in  their 
adherence  to  established  forms  of  action  as  to  refuse  to  decide 
cases  brought  in  forms  of  action  not  legally  appropriate  to 
them,  even  when  the  parties  waive  the  informality,  and  agree 
to  rest  the  case  upon  its  merits,  and  to  take  no  advantage 
of  the  defect  in  form.^ 

50.  Legal  Fictions. — A  legal  fiction,  as  the  term  is  here 
used,  is  an  assumption  made  in  order  to  modify  the  operation 
of  the  law  without  changing  its  letter ;  the  fact  being  that 
the  law  has  been  changed,  the  fiction  being  that  it  remains 
what  it  was.2 

The  common-law  procedure  grew  up  in  an  age  of  formalities 

1  Ker  V.  Osborne,  9  East,  381.  »  Maine's  An.  Law,  34,  25. 


§  50  HISTORY  OF  PLEADING.  46 

and  ceremonies.  In  the  course  of  its  development,  and  in 
the  process  of  adapting  its  remedies  to  the  new  needs  of  a 
progressive  people,  numerous  fictions  and  artificial  ceremonies 
were  resorted  to,  under  sanction  of  the  maxim,  that  in  fic- 
tione  juris,  semper  suhsistat  cequitas.  The  nature  and 
opeiation  of  these  fictions  may  be  illustrated  by  the  fiction 
of  a  loss  and  a  finding,  in  the  action  of  trover ;  the  fiction  of 
a  promise,  in  the  common  counts  ;  the  fiction  of  a  lease  and  an 
ouster,  in  ejectment ;  and  the  fiction  of  arrest  and  custody  of 
the  defendant,  whereby  the  King's  Bench  greatly  extended 
its  jurisdiction. 

Fictions  in  pleading  were  devised  to  promote  the  ends  of 
justice.  They  were  contrived  to  meet  new  demands  by  evad- 
ing arbitrary  forms  while  apparently  observing  them.  They 
were  intended  to  advance  the  law  as  a  remedial  agency,  and 
bring  it  into  harmony  with  the  needs  of  society,  without 
offending  that  conservative  disrelish  for  change  which  then 
prevailed.  On  one  hand  they  deferred  to  an  habitual  rever- 
ence for  old  formalities,  and  on  the  other  they  promoted  the 
rival  tendency  to  modif}'^  and  improve.  Legal  fiction  was  a 
rude  device,  but  it  was  a  valuable  expedient  for  overcoming 
the  rigidity  of  arbitrary  rules  and  forms.-' 

1  Amos.  Sci.  Law.  55 ;  Maine  An.    Law,  25  ;  Pom.  Rem.  7  ;  3  Bl.  Com. 

43  ;  Gould  PI.  iii.  18. 


h 


2>,  f-'^^^ 


\ 
\ 


/,  IJbJ^.iJ^<J(  i^^""^ 


CHAPTER  IX. 

THE  GENERAL  DIVISIONS  OF  PLEADING. 
I.   OF    THE    EARLIER    POEMS. 

61.  The  Original  Writ. — Formerly,  an  action  was  com- 
menced, in  any  of  the  superior  courts  of  common  law  having 
general  jurisdiction,  by  original  writ.  This  writ  is  not  a 
pleading,  but  it  bears  such  relation  to  the  pleadings  in  an 
action,  that  some  description  of  the  writ  and  of  its  ofiBce  is 
necessary  to  an  intelligent  consideration  of  the  pleadings. 

t'lie  original  writ — hreve  originale — is  a  mandatory  letter 
issued  out  of  the  Court  of  Chancery,  in  the  king's  name,  and 
under  the  ^reat  seal,  directed  to  the  sheriff  of  the  county 
wherein  tLs  injury  is  claimed  to  have  been  committed,  re- 
quiring him  to  command  the  party  complained  of  to  satisfy 
the  claim  of  the  plaintiff,  or  else  to  appear  in  one  of  the 
superior  courts  of  common  law,  on  a  day  named  in  the  writ, 
ind  answer  the  accusation  against  him;  though  in  some  cases 
She  former  command  is  omitted.  The  writ  contains  a  brief 
statement  of  the  nature  of  the  complaint,  and  is  issued  in 
order  (1)  to  give  the  courts  of  law  cognizance  of  the  cause, 
(2)  to  notify  the  defendant  of  the  nature  of  the  complaint 
made  against  him,  and  (3)  to  compel  his  appearance  before 
the  proper  court  to  make  answer  to  the  complaint.* 

The  superior  common-law  courts  of  England  were,  the 
King's  Bench,  the  Common  Pleas,  and  the  Exchequer. 
Formerly,  no  action  could  be  maintained  in  any  one  of  these 
courts,  without  the  sanction  of  the  king's  original  writ ;  the 
effect  of  which  was,  to  give  cognizance  of  the  cause  to  that 
court  in  which  it  directed  the  defendant  to  appear,  and  to 
which  court  the  sheriff  was  required  to  make  return  of  the 

>  Steph.  PL  62-66,  and  note  2  on  page  62. 

47 


g  52  HISTORY  OF  PLEADING.  48 

writ,  showing  the  manner  of  service  thereof.^  In  more 
modern  practice,  however,  this  writ  was  sometimes  dispensed 
with  in  personal  actions,  and  a  proceeding  by  hill  substituted. 
This  is  a  proceeding  founded  originally  upon  a  privilege  of 
the  plaintiff  or  defendant  because  of  his  official  relation  to 
the  court,  and  afterward,  by  resort  to  a  fiction,  extended  to 
other  suitoi"s.2 

The  theory  of  the  English  law  is,  that  the  king  is  the 
fountain  of  justice,  and  that  the  courts  of  law,  being  only 
substitutes  for  the  crown  in  the  administration  of  justice, 
should  take  cognizance  of  only  such  matters  as  are  expressly 
referred  to  them  by  original  writ,  issued  in  the  king's  name, 
and  under  the  great  seal.  But  in  this  country,  the  courts 
derive  their  jurisdiction  from  the  constitution  and  the  laws, 
and  require  no  original  writ  to  confer  it.  In  England,  this 
writ  is  now  disused  in  the  ordinary  actions. 

52.  Form  of  Original  Writ. — Following  is  the  form  of 
an  original 

WRIT   OF  COVENANT. 

George  the  Fourth,  by  the  grace  of  God,  of  the  United 
Kingdom  of  Great  Britain  and  Ireland  King,  Defender  of 
the  Faith,  and  so  forth,  to  the  sheriff  of  Middlesex,  greeting : 

Command  C.  D.,  late  of  ,  gentleman,  that  justly 

and  without  delay  he  keep  with  A.  B.  the  covenant  made  by 
the  said  C.  D.  with  the  said  A.  B.,  according  to  the  force, 
form  and  effect  of  a  certain  indenture  in  that  behalf  made 
between  them,  as  it  is  said.  And  unless  he  shall  so  do,  and 
if  the  said  A.  B.  shall  make  you  secure  of  prosecuting  his 
claim,  then  summon,  by  good  summoners,  the  said  C.  D., 
that  he  be  before  us,  in  eight  days  of  Saint  Hilary,  whereso- 
ever we  shall  then  be  in  England,  to  show  wherefore  he  hath 
not  done  it ;  and  have  you  there  the  names  of  the  summoners, 
and  this  writ. 

Witness  ourself  at  Westminster,  the  day  of 

in  the  year  of  our  reign.^ 

1  Steph.  PI.  63,  64.  »  Steph.  PL  78,  79. 

a  Steph.  PL  128-131. 


49  COMMON-LAW  PROCEDURE.  §§  53-55 

53.  Process  and  Appearance. — In  early  times,  the  actual 
appearance  of  the  parties,  either  in  person  or  by  attorney, 
was  requisite.  If  the  defendant  did  not  appear  in  obedience 
to  the  original  writ,  there  issued  from  tlie  court  of  common 
law  into  which  the  original  writ  was  returned,  judicial  writs, 
called  writs  of  process,  to  enforce  his  appearance.^  These 
successive  writs,  issued  to  compel  compliance  with  the  origi- 
nal writ,  and  founded  on  that  writ,  are  called  original  process^ 
to  distinguish  them  from  mesne  process,  which  issues  pending 
the  suit,  upon  some  collateral  matter — as,  to  summon  juries, 
witnesses,  and  the  like  ;  and  mesne  process  is  again  distin- 
guished from  final  process,  or  process  of  execution. ^ 

54.  Pleadings  Delivered  Orally. — When  the  appearance 
of  the  defendant  was  procured,  in  obedience  to  the  original 
writ,  or  by  means  of  judicial  process,  the  plaintiff  was  required 
to  appear  also  ;  and  both  parties  being  present,  in  person  or 
by  attorney,  thereupon  followed  the  allegations  of  fact,  alter- 
nately made,  whereby  the  court  was  informed  of  the  nature 
of  the  controversy.  These  allegations  were  made  viva  voce, 
by  the  parties,  or  by  professional  pleaders,  called  advocates, 
and  in  open  court  in  the  presence  of  the  judges.  These  oral 
allegations,  at  the  first  called  loquela,  were  afterward  de- 
nominated the  pleadings.  It  was  the  duty  of  the  judges  to 
superintend  this  oral  contention,  so  as  to  bring  the  pleaders 
ultimately  to  some  specific  matter  affirmed  on  one  side  and 
denied  on  the  other,  called  the  issue.  During  this  oral  alter- 
cation, an  officer  of  the  court  made  up  a  minute  in  writing  of 
the  alternate  allegations  of  fact,  to  and  including  the  issue. 
This  minute  of  the  pleadings,  together  with  a  short  statement 
of  the  nature  of  the  action,  and  of  other  incidents  and  pro- 
ceedings in  the  case  as  it  progressed,  constituted,  when  made 
on  the  parchment  roll,  what  was  called  the  record.  This 
record,  so  far  as  it  recited  what  took  place  in  the  progress  of 
the  case,  was  held  to  import  absolute  verity,  and  could  not 
be  contradicted. 

55.  Written  Pleadings. — The  actual  appearance  of  tlie 
parties,  and  the  oral  delivery  of  the  pleadings  in  open  courl, 

'  Steph.  PI.  97.  «  3  Bl.  Com.  279. 


i,  56  HISTORY  OF  PLEADING.  50 

are  practices  that  have  long  since  disappeared.  The  plaintiff 
is  considered  as  already  in  court,  by  the  bringing  of  the  action. 
The  defendant,  when  not  arrested,  appears  by  making  a  formal 
entry  of  appearance  in  the  proper  office  ;  and  in  case  of  arrest, 
he  appears  by  giving  bail  to  the  action.^  The  pleadings  are 
written  out  by  the  parties  or  their  attorneys,  and  delivered 
to  the  opposite  parties,  or  filed  in  the  proper  office.  For 
about  four  centuries  prior  to  1731  A.  D.,  the  pleadings  and 
the  record  were  in  the  Latin  language  ;  since  that  date,  they 
have  both  been  framed  in  English. 

The  record,  drawn  up  from  the  minutes  made  contempora- 
neously with  the  oral  pleadings  as  they  were  delivered  in 
open  court,  was,  of  course,  written  in  the  third  person.  The 
written  pleadings,  when  brought  into  use,  pursued,  and  still 
pursue,  the  same  style  of  allegation,  and  are  expressed  as  if 
they  were  extracts  from  the  record  ;  thus,  "  A.  B.  complains," 
or,  "  Now  comes  the  said  C.  D.  and  says." 

With  the  introduction  of  written  pleadings,  the  manner  of 
allegation  became  more  orderly  and  uniform,  rules  of  state- 
ment were  prescribed  and  enforced  by  the  courts,  method 
was  observed  and  precedents  were  followed,  until  there  was 
developed  a  connected  and  orderly  system,  regulating  not 
only  the  order  but  the  individual  construction  of  the  suc- 
cessive pleadings.  The  orderly  pleadings  of  fact  in  use  at 
common  law  are,  declaration,  plea,  replication,  rejoinder,  sur- 
rejoinder, rebutter,  and  surrebutter.  After  the  surrebutter, 
the  pleadings  have  no  distinct  names  ;  and  it  is  doubtful  if 
in  any  case  the  pleadings  have  been  carried  beyond  those 
named. 

n.   OF   THE   DECLARATION. 

56.  Its  Parts  and  Requisites. — The  pleadings  begin 
with  the  declaration,  which  is  a  written  statement  on  the 
part  of  the  plaintiff,  in  methodical  and  legal  form,  of  the 
facts  which  constitute  his  right  of  action.  In  real  actions 
it  was  formerly  called  the  count,  but  now,  in  both  real  and  per- 
sonal actions,  it  is  commonly  called  the    declaration  ;    and 

»  Steph.  PI.  104  ;  3  Bl.  Com.  287,  290. 


51  COMMON-LAW  PROCEDURE.  §  66 

when  the  declaration  embraces  two  or  more  causes  of  action, 
or  when  it  contains  several  statements  of  one  and  the  same 
right  of  action,  each  several  statement  is  called  a  count,  and 
all  of  the  counts,  taken  collectively,  constitute  the  declarar 
tion. 

The  general  requisites  of  a  declaration  are ;  (1)  that  it 
correspond  with  the  preceding  writ  of  process,  (2)  that  it 
contain  a  statement  of  the  facts  necessary  in  law  to  sus- 
tain the  action,  and  (3)  that  these  be  stated  with  certainty 
and  truth.^ 

The  particular  requisites  of  a  declaration  are  these  six  : 
(1)  the  title  of  the  court  and  the  term  thereof ;  (2)  the 
venue,  which  is  a  statement  of  the  county  in  which  the  facts 
occurred,  and  wherein  the  cause  is  to  be  tried  ;  (3)  the  com- 
mencement, stating  (a)  the  names  of  the  parties  to  the 
action,  (5)  how  the  defendant  has  been  brought  into  court, 
and  (c)  the  form  of  the  action ;  (4)  the  body,  or  a  state- 
ment of  the  right  of  action ;  (5)  the  conclusion  or  ad 
damnum — "  to  the  damage  of  the  plaintiff,"  etc. ;  (6)  the 
profert.2 

More  than  one  count  may  be  inserted  in  the  same  declara- 
tion ;  and  "it  was  formerly  the  practice,  in  some  forms  of 
action,  to  insert  two  or  more  counts  upon  one  set  of  facts, 
making  several  causes  of  action  where  there  was  only  one 
right  of  action.  This  was  done  to  avoid  the  consequences  of 
a  variance  between  the  declaration  and  the  evidence  ;  for  if 
the  evidence  sustained  any  one  of  the  counts,  the  plaintiff 
would  recover.  Where  several  counts  are  inserted  in  one 
declaration,  each  count  must  be  sufficient  in  itself  ;  that  is» 
it  must  contain  a  complete  cause  of  action.  Counts  sound- 
ing in  contract  and  counts  sounding  in  tort  cannot  be  joined 
in  the  same  declaration.^ 

The  commencement  of  the  declaration  should  contain  a 
recital  of  the  original  writ  ;  and  the  right  of  action  stated  in 
the  declaration  should  conform  to  and  agree  with  the  com- 
plaint made  in  the  writ.     The  original  writ  gives  the  court 

1 1  Ch.  PI.  244 ;  Steph.  PI.  416 ;        M  Ch.  PI.  240^120. 
Gould  PL  iv.  51.  s  Nimocks  v.  Inks,  17  Ohio,  596. 


^  57  HISTORY  OF  PLEADING.  52 

cognizance  of  the  action,  and  is  the  foundation  of  all  the 
subsequent  proceedings  therein,  and  departure  from  it  in  the 
declaration  is  said  to  "  abate  the  writ,"  and  leave  the  court 
without  authority  to  proceed  in  the  action.^ 

The  declaration  should,  in  its  conclusion,  lay  damages,  and 
allege  production  of  suit.  In  personal  and  mixed  actions,  it 
must  be  alleged  that  the  injury  complained  of  is  to  the 
damage  of  plaintiff,  and  must  specify  the  amount  of  the 
damage  ;  and  in  all  actions,  the  plaintiff  must  allege  produc- 
tion of  suit — ''  and  thereupon  he  brings  his  suit."  This 
formula  grew  out  of  the  requirement  in  ancient  times  that 
the  plaintiff  should,  on  making  his  complaint,  bring  with  him 
a  number  of  persons,  called  his  suit  or  secta,  to  confirm  his 
statements.  The  formula  is  all  that  remains  of  this  ancient 
practice. 

57.  Form  of  Declaration. — Following  is  the  form  of  a 

DECLARATION  IN  COVENANT. 

In  the  King's  bench,  Term,  in  the  year  of 

the  reign  of  King  George  the  Fourth. 

Middlesex,  to  wit,  A.  B.,  the  plaintiff,  by  E.  F.,  his  attorney, 
complains  of  C.  D.,  the  defendant,  who  has  been  summoned 
to  answer  the  said  plaintiff,  in  an  action  of  covenant :  For 
that  whereas  heretofore,  to  wit,  on  the  day  of  , 

in  the  year  of  our  Lord  ,  by  a  certain  indenture  then 

and  there  made  between  the  said  plaintiff  of  the  one  part, 
and  the  said  defendant  of  the  other  part  (one  part  of  which 
said  indenture,  sealed  with  the  seal  of  said  defendant,  the 
said  plaintiff  now  brings  here  into  court,  the  date  whereof  is 
the  day  and  year  aforesaid),  the  said  plaintiff,  for  the  con- 
sideration therein  mentioned,  did  demise,  lease,  and  to  farm 
let,  unto  the  said  defendant,  a  certain  messuage  or  tenement, 
and  other  premises  in  the  said  indenture  particularly  speci- 
fied, to  hold  the  same,  with  the  appurtenances,  to  the  said 
defendant,  his  executors,  administrators  and  assigns,  from 
the  twenty-fifth  day  of  March  next  ensuing  the  date  of  said 

«  Gould  PI.  iv.  51. 


53  COMMON-LAW  PROCEDURE.  §57 

indenture,  for  and  during  and  unto  the  full  end  and  term  of 
seven  years  from  thence  next  ensuing,  and  fully  to  be  com- 
plete and  ended  at  a  certain  rent  payable  by  the  said  defend- 
ant to  the  said  plaintiff,  as  in  the  said  indenture  is  mentioned. 
And  the  said  defendant,  for  himself,  his  executors,  admin- 
istrators and  assigns,  did  thereby  covenant,  promise  and 
agree,  to  and  with  the  said  plaintiff,  his  heirs  and  assigns, 
amongst  other  things,  that  he,  the  said  defendant,  his  execu- 
tors, administrators  and  assigns,  should  and  would,  at  all 
times  during  the  continuance  of  the  said  demise,  at  his  and 
their  own  costs  and  charges,  support,  uphold,  maintain  and 
keep  the  said  messuage  or  tenement  and  premises  in  good 
and  tenan table  repair,  order  and  condition ;  and  the  same 
messuage  or  tenement  and  premises,  and  every  part  thereof, 
should  and  would  leave  in  such  good  repair,  order  and  con- 
dition, at  the  end,  or  other  sooner  determination  of  the  said 
term,  as  by  the  said  indenture,  reference  being  thereunto 
had,  will,  among  other  things,  fully  appear.  By  virtue  of 
which  said  indenture,  the  said  defendant  after wai'd,  to  wit, 
on  the  twenty-fifth  day  of  March,  in  the  year  aforesaid, 
entered  into  the  said  premises,  with  the  appurtenances,  and 
became  and  was  possessed  thereof,  and  so  continued  until  the 
end  of  the  said  term.  And  although  the  said  plaintiff  hath 
always,  from  the  time  of  the  making  of  the  said  indenture, 
hitherto  done,  performed  and  fulfilled,  all  things  in  the  said 
indenture  contained  on  his  part  to  be  performed  and  fulfilled, 
yet  the  said  plaintiff  saith  that  the  said  defendant  did  not, 
during  the  continuance  of  the  said  demise,  support,  uphold, 
maintain  and  keep  the  said  messuage  or  tenement  and  premises 
in  good  and  tenantable  repair,  order  and  condition,  and  leave 
the  same  in  such  repair,  order  and  condition,  at  the  end  of  the 
term ;  but  for  a  long  time,  to  wit,  for  the  last  three  years  of 
the  said  term,  did  permit  all  the  windows  of  the  said  mes- 
suage or  tenement  to  be,  and  the  same  during  all  that  time 
were,  in  every  part  thereof,  ruinous,  in  decay,  and  out  of 
repair,  for  want  of  necessary  reparation  and  amendment. 
And  the  said  defendant  left  the  same,  being  so  ruinous,  in 
decay  and  out  of  repair  as  aforesaid,  at  the  end  of  the  said 
term,  contrary  to  the  form  and  effect  of  the  said  covenant  so 


4^53  HISTORY  OF  PLEADING.  54 

made  as  aforesaid.  And  so  the  said  plaintiff  saith  that  the 
«aid  defendant,  although  often  requested,  hath  not  kept  the 
said  covenant  so  by  him  made  as  aforesaid,  but  hath  broken 
the  same,  and  to  keep  the  same  with  the  said  plaintiff  hath 
hitherto  wholly  refused,  and  still  refuses,  to  the  damage  of 
the  said  plaintiff  of  pounds ;  and  therefore  he  brings 

his  suit,  etc. 

m.   OF   PLEAS — DILATORY. 

58.  Dilatory  Pleas  Defined  and  Classified. — The  first 
pleading  on  the  part  of  the  defendant,  and  which  opposes 
matter  of  fact  or  denial  to  the  declaration,  is  called  a  plea. 
Pleas  are  divided  into  pleas  dilatory,  and  pleas  in  bar ;  and 
the  latter— sometimes  called  "  peremptory  pleas,"  and  some- 
times "  pleas  to  the  action  " — are  again  divided  into  pleas  by 
way  of  traverse,  and  pleas  in  confession  and  avoidance. 

Dilatory  pleas  are  such  as  tend  merely  to  delay  the  action 
by  questioning,  not  the  right  of  action,  but  the  propriety  of 
the  suit  as  brought.  They  delay,  and  sometimes  defeat,  the 
particular  suit,  without  affecting  the  merits  of  the  plaintiff's 
demand.  Dilatory  pleas  are  divided  into  (1)  pleas  to  the 
jurisdiction,  (2)  pleas  to  the  disability  of  the  person,  and 
(3)  pleas  in  abatement. 

A  plea  to  the  jurisdiction  is  one  th0.t  questions  the  juris- 
diction of  the  court  to  entertain  the  action.  Such  plea 
alleges  facts  to  show  want  of  jurisdiction,  and  then  prays  the 
judgment  of  the  court  whether  it  will  take  further  cognizance 
of  the  suit. 

A  plea  to  the  disability  of  the  person  is  one  that  alleges 
some  legal  disability  of  the  plaintiff  to  sue,  or  of  the  defend- 
ant to  be  sued,  and  prays  judgment  whether  the  defendant 
ought  to  be  compelled  to  answer. 

A  plea  in  abatement  is  one  that  shows  some  ground  for 
abating  either  the  original  writ,  or  the  declaration.  Pleas  of 
this  class  are  founded  upon  some  legal  defect  in  the  writ  or 
declaration  ;  as,  that  the  defendant  is  misnamed  therein,  or 
that  the  declaration  does  not  pursue  the  writ,  pr  that  there  is 
repugnance  between  them,  or  that  there  is  a  prior  action 
pending  between  the  same  parties,  for  the   same  cause.     An 


55  COMMON-LAW  PROCEDURE.  §g  50-60 

insufficiency  apparent  upon  the  face  of  the  declaration,  and 
without  reference  to  the  writ,  or  other  extrinsic  matter,  is  not 
ground  for  abatement,  but  must  be  taken  advantage  of  by 
demurrer.  A  plea  in  abatement  prays  judgment  of  the  writ, 
or  the  declaration,  and  that  the  same  may  be  quashed. 

59.  Dilatory  Pleas  Odious  in  Law. — Formerly,  dilatory 
pleas  were  often  resorted  to  merely  for  delay,  and  without 
an}^  foundation  in  truth ;  and  for  this  reason,  and  because 
their  object  always  is  to  suspend  or  defeat  a  suit  upon 
grounds  other  than  its  merits,  they  are  regarded  unfavorably 
in  law,  and  the  greatest  precision  is  required  in  their  con- 
struction and  use.  They  must  be  pleaded  at  a  preliminary 
stage  of  the  action  ;  that  is,  before  a  plea  in  bar.  They  must 
be  pleaded  in  due  order ;  that  is,  first,  to  the  jurisdiction  ; 
secondly,  to  the  disability ;  thirdly,  to  the  declaration  ;  and 
fourthly,  to  the  writ ;  and  all  pleas  in  abatement  must  give 
the  plaintiff  a  better  writ  or  declaration.  This  last  require- 
ment is  to  enable  the  plaintiff  to  cure  the  defect  relied  upon, 
and  to  frame  a  new  writ  or  declaration  that  will  not  be 
obnoxious  to  the  same  objection.  For  example,  if  a  mis- 
nomer is  the  ground  of  a  plea  in  abatement,  the  plea  must 
state  the  true  name.^ 

60.  Judgments  on  Dilatory  Pleas. — If  a  dilatory  plea 
be  sustained,  either  upon  an  issue  in  fact  or  upon  an  issue  in 
law,  the  judgment  is,  that  the  cause  be  dismissed  from  that 
jurisdiction,  or  that  the  writ  or  declaration  be  quashed,  or  that 
the  suit  be  stayed  until  the  disability  be  removed.  If  an  issue 
in  law  upon  such  plea  be  decided  for  the  plaintiff,  the  judg- 
ment is,  that  the  defendant  answer  over ;  that  is,  that  he  plead 
again,  either  in  bar,  or  by  a  dilatory  plea  subsequent  in  order 
to  the  one  upon  which  the  judgment  is  entered.  This  is 
called  a  judgment  of  respondeat  ouster.  If  an  issue  in  fact 
upon  such  plea  be  decided  for  the  plaintiff,  the  judgment  is, 
that  he  recover.  Such  judgment  is  called  a  judgment  quod 
recuperet,  and  may  be  either  final  or  interlocutory.  If  the 
action  be  one  for  damages  only,  and  the  issue  be  in  law,  or 
in  fact  and  not  tried  by  jury,  the  judgment  is  only  that  the 

'  Steph.  PI.  420,  424. 


§§61-62  HISTORY  OF  PLEADING.  5(; 

plaintiff  ought  to  recover.  Upon  this  interlocutor  1/  jxidgment 
a  writ  of  inquiry  issues  to  the  sheriff,  commanding  him  to 
summon  a  jury  and  assess  the  amount  of  damages  sustained. 
Upon  return  of  this  inquisition,  the  plaintiff  is  entitled  to  a 
final  judgment  for  the  amount  of  damages  so  assessed.  But 
if  such  issue  in  fact  be,  in  the  first  instance,  tried  by  a  jury, 
the  damages  are  then  assessed,  and  final  judgment  entered 
therefor.  If  the  action  be  not  for  damages  only,  a  judgment 
for  the  plaintiff  is,  in  general,  final  in  the  first  instance. 

IV.   OF   PLEAS — BY   WAY   OF   TRAVERSE. 

61.  Pleas  in  Bar  Defined  and  Classified. — It  has  been 
shown  that  dilatory  pleas  are  such  as  tend  merely  to  divert 
the  action  to  another  jurisdiction,  or  to  suspend  or  delay 
further  proceedings  therein,  without  at  all  impugning  the 
merits  of  the  plaintiff's  demand.  A  plea  in  bar,  on  the  other 
hand,  goes  to  the  merits  of  the  plaintiff's  demand,  and  shows 
some  ground  for  barring  or  defeating  the  action  upon  its 
merits.  A  dilatory  plea  makes  a  merely  formal  objection  to 
the  proceeding;  a  plea  in  bar  makes  a  substantial  and  con- 
clusive answer  to  the  plaintiff's  demand.  The  former  ques- 
tions only  the  propriety  of  the  suit,  while  the  latter  questions 
the  right  of  action. 

A  plea  in  bar  may  oppose  matters  of  fact  or  of  denial  to  the 
right  of  action  stated  in  the  declaration,  in  either  of  two 
ways ;  (1)  it  may  deny  the  truth  of  all  or  any  of  the  material 
facts  alleged  in  the  declaration,  or  (2)  it  may  admit  the  facts 
so  alleged,  and  state  other  facts  to  show  that,  because  of  such 
new  facts,  those  alleged  by  the  plaintiff  do  not  give  him  a 
right  of  action.  In  the  former  case,  the  defendant  is  said  to 
traverse  the  matter  of  the  declaration ;  in  the  latter,  to  con- 
fess and  avoid  it. 

Pleas  in  bar  are  therefore  divided  into  pleas  bi/  way  of 
traverse^  and  pleas  hy  way  of  confession  and  avoidance. 

62.  Pleas  by  Way  of  Traverse. — Traverse  means,  liter- 
ally, anything  that  hinders,  thwarts,  or  obstructs.  In  plead- 
ing, it  is  the  denial  of  some  matter  of  fact  alleged  on  the 
other  side,  and  may  be  interposed  to  any  pleading  of  fact. 


57  COMMON-LAW  PROCEDURE.  §62 

A  plea  by  way  of  traverse  is  said  to  tender  issue  upon  the 
matters  of  fact  so  traversed,  and  should  conclude  by  a  formal 
offer  to  refer  the  issue  thus  tendered  to  some  authorized  mode 
of  trial.^  If  the  offer  be  to  refer  the  issue  to  the  decision  of 
a  jur}'-,  the  usual  formula  is,  "  and  of  this  he  puts  himself  upon 
the  country."  This  is  known  as  the  "conclusion  to  the 
country,"  as  distinguished  from  the  formal  conclusion  of  a 
plea  containing  new  matter,  which  is,  "  and  this  the  said  de- 
fendant is  ready  to  verify,"  and  is  known  as  a  "  verification." 
When  a  pleading  of  the  plaintiff  concludes  to  the  country, 
it  does  so  in  these  words  :  "  And  this  the  said  A.  B.  prays 
may  be  inquired  of  by  the  country."  And  when  either  party 
concludes  to  the  country,  the  issue,  if  well  tendered  both  in 
point  of  substance  and  in  point  of  form,  must  be  accepted  by 
the  other  party.  This  is  done  by  adding  what  is  called  the 
similiter^  or  joinder  in  issue,  which  is  in  these  words  : 
"  And  the  said  doth  the  like."  ^     A  plea  of  a  record 

concludes,  of  course,  with  a  verification — "  And  this  the  said 
defendant  is  ready  to  verify  by  the  said  record ; "  and  a  plea 
of  nul  tiel  record  also  concludes  with  a  verification,  and  the 
other  party  then  closes  the  issue  by  reaffirming  the  existence 
of  the  record,  and  praying  that  it  may  be  inspected  by  the 
court.^  The  requirement  that  an  issue  well  tendered  must 
be  joined,  is  peremptory  ;  because,  to  allow  a  party  to  make 
any  other  reply  to  a  mere  denial  of  what  he  had  before 
alleged,  would  be  to  authorize  an  abandonment  of  the  ground 
at  first  taken  by  him. 

^  The  several  modes  of  trial  pro-  there  is  no  such  record.    This  issue 

vided  by  the  common  law  in  civil  is  triable  only  by  inspection  of  the 

cases  are  seven :  (1)  by  record ;  (2)  record  by  the  court.     The  other 

by  inspection,  or  examination  ;  (3)  modes  of  trial  by  common  law,  ex- 

by    certificate  ;    (4')    by    witnesses  cept  trial  by  jury,  are  rarely,  if 

(without  jury) ;    (5)  by  wager  of  ever,   used  in  the  United   States, 

battle ;  (6)  by  wager  of  law  ;  and  Substantially  all  issues  in  fact,  ex- 

(7)  by  jury.     3  Bl.  Com.  330.     Trial  cept  that  of  mil  tiel  record,   are 

by  record  is  used  in  only  one  in-  therefore  triable  by  jury.     Gould 

stance,  and  that  is  where  a  matter  PI.  vi.  16,  17,  18  ;  Steph.  PI.  189. 

of  record,   as  a  judgment  or  the  ^  steph.  PI.  150,  166,  291  ;  Gould 

like,  is  pleaded,  and  the  opposite  PL  vi.  20. 

party  pleads  nul  tiel  record— that  »  Steph.  PI.  288 ;  Gould  PI.  vi.  17. 


§§  63-84  HISTORY  OF  PLEADING.  58 

Traverses  maybe  divided,  according  to  the  form  and  scope 
of  the  denial,  into  four  kinds  ;  the  general  traverse,  the  com- 
mon traverse,  the  special  traverse,  and  the  traverse  de  injuria. 

63.  The  General  Traverse. — A  general  traverse  is  one 
that  denies  all  that  is  alleged  in  the  pleading  to  which  it  is 
addressed.  As  a  plea,  it  is  a  compendious  denial  of  the 
whole  of  the  declaration.  In  most,  if  not  all,  of  the  ordinary 
actions,  there  is  a  fixed  and  appropriate  form  of  general  trav- 
erse of  the  declaration,  called  the  general  issue  in  that 
action.  These  formal  traverses  are  called  general  issues, 
because  they  import  an  absolute  denial  of  what  is  alleged 
in  the  declaration,  and  amount  at  once  to  an  issue,  and  be- 
cause the  issue  so  made  is  general  and  comprehensive,  in- 
volving as  it  does  the  whole  declaration.  This  form  of 
general  traverse,  called  the  general  issue,  occurs  only  as  a 
plea — the  second  in  the  series  of  pleadings.  It  is  a  general 
rule,  that  when  a  plea  amounts  to  the  general  issue,  it  should 
be  so  pleaded ;  though  special  pleas,  amounting  to  the  gen- 
eral issue,  are,  it  seems,  sometimes  allowable,  in  the  discre- 
tion of  the  court.^ 

The  general  issue  is  pleaded  by  a  short  and  simple  formula, 
yet  it  is  tantamount  to  a  specific  and  literal  negation  of  all 
the  material  allegations  of  the  declaration. 

The  scope  of  the  general  issue  in  the  different  actions — 
the  matters  put  in  issue  by  it,  and  the  evidence  admissible 
under  it — is  one  of  the  most  important  topics  of  the  common- 
law  system  of  pleading.  The  names,  and  the  general  scope 
and  operation  of  the  general  issues,  will  be  hereafter  stated 
in  connection  with  the  description  of  the  different  forms  of 
action  wherein  such  traverse  may  be  pleaded. 

64.  The  Common  Traverse. — The  common  traverse  is 
a  direct  contradiction,  modo  et  forma^  of  some  particular 
matter  alleged  by  the  opposite  party.  It  is  usually  negative 
in  form,  but  when  it  traverses  a  negative  allegation,  it 
should  be  affirmative  in  form,  otherwise  it  would  not  make 
an  issue.^     It   always   concludes    to   the    country.     For  ex- 

'  Steph.  PI.  407 ;  Gould  PI.  vi.        »  Post,  360. 

85-87. 


59  COMMON-LAW  PROCEDURE.      ^  '  §65 

ample,  if  a  lessor  sue  his  lessee  for  breach  of  covenant  to 
repair,  alleging  in  the  declaration  the  leasing  by  indenture, 
the  covenant  of  the  defendant  to  maintain  and  repair,  his 
enjoyment  of  the  premises  for  the  term,  and  that  he  left  the 
same  "ruinous,  in  decay,  and  out  of  repair  " — as  in  the  form 
of  declaration  in  section  57,  ante,  the  defendant  may,  by 
common  traverse,  deny  the  single  allegation  that  the  prem- 
ises were  out  of  repair.  His  plea  would  be  in  this  negative 
form  :  "  And  the  said  defendant  says,  that  said  premises 
were  not,  in  any  part  thereof,  '  ruinous,  in  decay,  or  out  of 
repair,'  in  manner  and  form  as  the  said  plaintiff  hath  com- 
plained. And  of  this  he  puts  himself  upon  the  country." 
A  plea  of  the  statute  of  limitations  is  negative  in  form  ;  as, 
"  that  the  defendant  did  not,  at  any  time  within  six  years 
next  before  the  commencement  of  this  action,  undertake  or 
promise,  in  manner  and  form  as  the  plaintiff  hath  above  com- 
plained." To  such  plea,  the  replication  of  the  plaintiff, 
using  the  common  traverse,  would  be  in  this  affirmative 
form :  "  And  the  said  plaintiff  says,  that  the  said  defendant 
did,  within  six  years  next  before  the  commencement  of  this 
suit,  undertake  in  manner  and  form  as  he  the  said  plaintiff 
hath  above  complained.  And  this  he  prays  may  be  inquired 
of  by  the  country."  ^  In  each  of  these  instances  the  traverse 
is  in  terms  of  the  allegation  traversed,  and  by  way  of  direct 
contradiction ;  though  in  one  case  it  is  negative,  and  in  the 
other  affirmative  in  form. 

G5.  The  Special  Traverse. — The  two  kinds  of  traverse 
that  have  been  described  consist  exclusively  of  denials ;  the 
general  traverse  denying  all,  and  the  common  traverse  deny- 
ing, generally,  some  particular  part  only,  of  the  matters  last 
alleged  on  the  opposite  side.  By  neither  of  these  forms  of 
traverse  can  any  new  matter  be  alleged.  But  it  is  some- 
times necessary  that  the  denial  of  an  allegation  be  explained 
or  qualified,  instead  of  being  put  in  the  direct  and  absolute 
form  of  either  a  general  or  a  common  traverse  ;  or  that  the 
denial  be  accompanied  by  affii-mative  matter,  in  order  that 
the  materiality  of  the  denial  shall  appear.     For   example, 

1  Steph.  PI.  239. 


^63  HISTORY  OF  PLEADING.  60 

suppose  a  declaration  charge  false  imprisonment  on  the  first 
of  May,  and  the  fact  be  that  the  defendant,  as  sheriff,  arrested 
the  plaintiff  under  a  writ  issued  on  the  tenth  of  May.  He 
can  not,  by  a  general  traverse,  deny  all  that  is  alleged  in  the 
declaration,  because,  without  the  affnmative  fact  of  the  writ, 
the  declaration  is  all  true  except  the  date ;  and,  so  far  as 
would  then  appear,  the  date  is  not  material,  for  the  act 
charged  is  as  wrongful  on  one  day  as  on  another.  For  the 
same  reason,  he  can  not  deny,  by  a  common  traverse,  that  he 
imprisoned  him  on  the  day  charged.  And  an  affirmative 
plea  of  his  office  and  his  writ  would  not  justify  the  arrest 
charged,  because  the  writ  did  not  exist  at  the  date  of  the 
alleged  arrest.  It  is  clear  that  he  must  show,  affirmatively, 
his  office,  his  writ,  the  arrest  under  it,  and  that  such  arrest 
is  the  same  one  charged ;  and  he  must  then  deny  that  he 
arrested  the  plaintiff  on  the  first  of  May  as  charged.  These 
affirmative  facts,  while  they  deny  nothing,  are  inconsistent 
with  the  declaration ;  and  they  show  that  the  time  of  the 
arrest,  although  generally  immaterial,  is,  in  this  special  case, 
material.  The  time  alleged  being  thus  made  material,  the 
denial  becomes  material.  If,  in  the  case  supposed,  the  dec- 
laration charged  the  imprisonment  to  have  been  in  a  certain 
county,  and  the  defendant  was  sheriff  of  another  county, 
wherein  he  made  the  arrest,  he  can  not,  by  a  general  traverse, 
deny  the  whole  declaration ;  he  can  not,  by  a  common  trav- 
erse, deny  the  allegation  as  to  place,  for  the  place,  as  well 
as  the  time,  is  immaterial  in  the  declaration ;  and  he  can 
not  plead  his  authority  as  a  justification,  for  the  arrest  will 
not  appear  to  be  the  same.  He  must  allege  his  office,  his 
writ,  the  arrest  by  virtue  thereof,  and  that  the  arrest  alleged 
is  the  same  as  the  one  complained  of ;  and  he  must  deny  the 
arrest  in  the  county  named  in  the  declaration .^  Such 
defense,  when  pleaded,  is  called  a  special  traverse.  It  is  a 
pleading  of  peculiar  character,  in  that  it  both  discloses  new 
matter,  and  denies  matter  previously  alleged. 

66.  Special  Traverse — Defined  and  Analyzed.^-Wemay 
therefore  define  a  special  traverse  to  be,  an  affirmative  state- 

1  Evans  PI.  24.  25  ;  Steph.  PI.  243-260. 


(jj  COMMON-IAW  PROCEDURE.  §67 

ment  of  facts  inconsistent  witli  those  alleged  by  the  opposite 
party,  followed  by  a  denial  of  allegations  rendered  material 
by  such  affirmative  statement.  The  affirmative  part  of  a 
special  traverse  is  called  the  inducement,  and  the  negative 
part  is  called  the  absque  hoc — these  being  the  words  by  which 
this  technical  form  of  negation  was  formerly  introduced. 
The  inducement,  while  it  is  always  repugnant  to,  and  incon- 
sistent with,  all  or  some  part  of  the  adverse  pleading,  does 
not  properly  make  an  issue,  because  it  alleges  new  matter, 
and  because  both  allegations  are  in  the  affirmative.  The 
absque  hoc,  being  a  denial  of  material  allegations,  does  tender 
an  issue. 

Considering  only  the  inducement,  such  pleading  should 
conclude  with  a  verification  ;  but  considering  only  the  denial, 
it  should  conclude  to  the  country.  We  accordingly  find  a 
diversity  in  the  authorities,  as  to  how  a  special  traverse  should 
conclude.  Upon  principle,  it  would  seem  that  where  the 
special  traverse  embraces  the  whole  substance  of  what  is 
alleged  on  the  other  side,  it  should  conclude  to  the  country  ; 
but  if  it  embrace  only  a  part  of  what  is  alleged  on  the  other 
side,  it  should  conclude  with  an  offer  to  verify,  thus  leaving 
the  pleadings  open  so  that  the  adverse  party  may  plead  to  the 
matters  stated  in  the  inducement. ^ 

67.  Special  Traverse — Its  Object  and  its  Form. — The 
object  of  the  special  traverse  is  twofold  :  (1)  it  enables  the 
pleader  to  avail  himself  of  affirmative  defensive  matter  which,, 
if  taken  alone,  would  be  only  an  indirect  and  argumentative 
denial,  and  hence  not  pleadable  ;  ^  and  (2)  it  enables  him  to- 
traverse  an  allegation  that  would  appear  immaterial,  and 
hence  not  traversable,  if  denied  by  any  other  form  of  traverse.^ 
The  inducement  contains  matter  that  is  in  substance  an 
answer,  but  it  is  only  an  indirect  denial ;  the  absque  hoc  is 
added  to  put  the  denial  in  direct  form. 

The  form  of  a  denial  in  a  special  traverse  is  anomalous. 

*  Gould   PI.    vii.    14-24.     By  the  from  pleading  to  the  inducement. 

Pleading  Rules  of  Hil.  T.  4  Will.  1  Chit.  PI.  741. 

IV.  all  special  traverses  are  to  con-  '  Steph.  PI.  253. 

elude  to  the  country  ;  but  this  shall  '  Evans  PI.  24. 
not  preclude    the  opposite    party 


§  68  HISTORY  OF  PLEADING.  62 

After  the  characteristic  words,  "  absque  hoc,^^  the  matter  in- 
tended to  be  denied  is  stated  affirmatively.  For  example,  if 
a  plaintiff  show  title  in  himself  by  alleging  "  that  A.  B. 
devised  the  land  to  him,"  and  then  died  seized  in  fee  ;  the 
defendant  may  plead  that  A.  B.  died  intestate,  seized  in  fee, 
leaving  the  defendant  his  sole  heir  at  law,  to  whom  the  land 
descended  :  Without  this,  "  tliat  A.  B.  devised  the  land  to  the 
plaintiff."  Such  plea  would  be  a  special  traverse  ;  the  alle- 
gation of  A.  B.'s  intestacy  is  the  inducement,  and  the  part 
beginning  with  the  phrase,  "  without  this,"  is  the  denial  of 
the  alleged  devise ;  and  is  technically  termed  the  absque 
hoc.  How  this  phraseology  came  to  import  a  denial,  is  neither 
easy  to  learn,  nor  important  to  know.  In  some  instances, 
however,  the  denial  is  introduced  by  other  words  of  equiv- 
alent import.     "  Ut  non  "  has  been  held  sufficient. 

This  form  of  traverse  is  a  relic  of  the  subtle  genius  of  the 
ancient  pleaders,  and  the  rules  and  distinctions  connected 
with  its  use  are  supposed  to  be  among  the  most  intricate  in 
the  whole  science.  It  was  formerly  of  frequent  occurrence, 
but  is  said  to  have  fallen  into  comparative  disuse.^  There 
are  some  defenses,  however,  that  can  not  be  made  avail- 
able without  combining  both  denials  and  new  matter  in 
one  defense  ;  and  for  this  reason,  a  defense  similar  to  the 
special  traverse  is  allowable  under  the  Reformed  Proced- 
ure.^ 

68.  The  Traverse  de  Injuria. — There  is  yet  another 
kind  of  traverse,  called  the  traverse  de  injuria  sua  propria 
absque  tali  causa  ;  or,  as  it  is  compendiously  called,  the 
*' traverse  de  injuria.^''  It  occurs  only  in  the  replication, 
and  can  be  used  only  in  certain  actions,  and  when  the  plea 
contains  matter  of  excuse.  It  does  not,  like  the  special 
traverse,  follow  the  words  of  the  allegations  traversed,  but, 
like  the  general  issue  in  its  denial  of  the  allegations  of  the 
declaration,  this  traverse  denies  the  whole  matter  of  the  plea, 
by  a  general  and  comprehensive  formula,  devised  for  the  pur- 
pose of  abridging  the  replication.     The  import  of  this  form 

1  Steph.  PI.  251-261  ;    Gould  PI.        ^  Post,  245. 
vii.  8  ;  Evans  PL  24,  33. 


ea  COMMON-LAW  PROCEDURE.  §68 

of  traverse  is,  to  insist  that  the  defendant  committed  the  act 
complained  of,  under  circumstances  altogether  different  from 
those  insisted  on  by  the  plea.  For  example,  if  to  an  action 
of  trespass  for  assault  and  battery,  the  defendant  pleads  son 
assault  demesne, — that  the  plaintiff  made  the  first  assault, 
— the  plaintiff,  instead  of  traversing  specially  the  several 
allegations  in  the  plea,  may  deny  the  whole,  by  replication 
de  injuria.  The  form  of  such  traverse  would  be  "  that  the 
said  defendant,  at  the  said  time  when,  etc.,  of  his  own  wrong, 
and  without  the  cause  by  him  in  his  said  plea  alleged,  com- 
mitted the  said  trespass  in  the  introductory  part  of  that  plea 
mentioned,  in  manner  and  form  as  the  said  plaintiff  hath  in 
his  said  declaration  complained  ;  and  this  he  prays  may  be 
inquired  of  by  the  country."  It  will  be  seen  that  this  form 
of  traverse  differs  essentially  from  the  special  traverse.  The 
inducement,  de  injuria,  etc.,  alleges  no  new  matter,  but  only 
reaffirms,  in  general  terms,  the  wrong  complained  of  in 
the  declaration  ;  and  the  traverse,  absque  tali  causa,  is  an 
abridged  denial  of  the  special  justification.  The  replication 
de  injuria  was  formerly  limited  to  the  actions  of  trespass  and 
case,  but  it  has  been  permitted  in  replevin,  in  debt,  and  in 
assumpsit. 

This  traverse  always  concludes  to  the  country.  This  is  so 
for  two  reasons :  (1)  since  it  contains  no  new  matter  to  be 
answered,  there  is  no  reason  for  longer  keeping  the  pleadings 
open ;  and  (2)  since  it  traverses  the  whole  of  the  plea,  it  can 
not  be  immaterial,  and,  if  not  faulty  in  form,  must  be  accepted 
by  the  defendant.  This  form  of  denial  is  not  only  restricted 
to  the  denial  of  what  is  pleaded  as  an  excuse ;  it  is  improper 
if  the  plea  contain  matter  of  record,  of  title,  or  of  authority 
derived  from  the  plaintiff.  The  reasons  are  :  (1)  de  i^ijuria 
concludes  to  the  country,  and  a  jury  is  not  the  proper  tribunal 
to  pass  upon  a  record ;  (2)  where  title  is  involved,  the  trav- 
erse should  be  moie  direct,  and  the  issue  less  complicated ; 
and  (3)  where  authority  from  the  plaintiff  is  pleaded,  he 
knows  whether  it  is  true,  and  should  either  admit  it,  or  deny 
it  specifically. 1 

1  Steph.  PL  242  ;  Gould  PI.  vii.  9,  17,  27  ;  Ames'  Cases  on  PI.  143. 


g§  69-'i  1  HISTORY  OF  PLEADING.  64 

V.   OF   PLEAS — IN    CONFESSION   AND    AVOIDANCE. 

69.  General  Nature  of  Pleas  in  Avoidance.— Having 

described  the  several  kinds  of  pleas  in  bar  by  way  of  traverse, 
it  remains  to  explain  and  classify  pleas  in  bar  by  way  of  con- 
fession and  avoidance.  These  are  such  as  admit  the  facts 
alleged  in  the  declaration,  and  avoid  their  legal  effect  by 
alleging  other  facts  which  show  tha.t  the  plaintiff  either  never 
had  a  right  of  action,  or  that  his  right  is  barred  by  some  super- 
venient fact.  Pleas  by  way  of  confession  and  avoidance  do 
not  traverse  the  facts  stated  in  the  declaration,  and  therefore 
do  not  tender  issue,  and  do  not  conclude  to  the  country. 
The  formal  conclusion  of  such  pleas  is  called  a  verification — 
"  and  this  the  said  defendant  is  ready  to  verify."  It  is  a 
general  rule  in  common-law  pleading,  that  any  pleading 
merely  introducing  new  matter  should  conclude  with  a  verifi- 
cation, and  thus  leave  the  pleadings  open,  so  that  the  other 
party  may  either  deny  or  avoid  such  new  matter. 

70.  Pleas  in  Excuse,  and  in  Discharge. — Pleas  by  way 
of  confession  and  avoidance  are  usually  divided  into  pleas  in 
■excuse,  and  pleas  in  discharge.  A  plea  of  the  former  class 
-•shows  some  justification  or  excuse  of  the  matters  alleged  in 
the  declaration.  Such  plea  shows,  in  effect,  that  the  plaint- 
iff never  had  a  right  of  action  by  virtue  of  the  facts  by  him 
alleged.  Of  this  class  are,  the  plea  of  son  assault  de- 
mesne, in  trespass  for  assault  and  battery ;  imprisonment 
under  a  warrant ;  incapacity  to  contract ;  duress,  and  the 
like. 

A  plea  in  discharge  shows  some  release  or  discharge  of 
the  duty  stated  in  the  declaration.  The  effect  of  such  plea 
is,  to  show  that  although  the  plaintiff  once  had  the  claim  stated 
by  him,  the  defendant  is  freed  from  it  by  matter  subsequent. 
Of  this  class  are,  pleas  of  payment,  of  release,  of  accord  and 
satisfaction,  the  statute  of  limitations,  and  discharge  in  bank- 
ruptcy.^ 

71.  Plea  Must  Give  Color. — Every  pleading  by  way  of 
confession  and  avoidance  must  [/ive  color;  that  is,  it  must 

1  Steph.  PI.  865 ;  1  Chit.  PI.  526. 


^5  COMMON-LAW  PROCEDURE.  §72 

admit  an  apparent  right  in  the  opposite  party,  and  rely  on 
new  matter  to  defeat  such  apparent  right.  A  plea  by  way 
of  confession  and  avoidance  must,  expressly  or  impliedly, 
concede  that  the  plaintiff  has,  prima  facie.,  a  right  of  action. ^ 
This  is  a  logical  requisite  to  justify  the  statement  of  new 
matter ;  for  otherwise,  the  new  matter  would  go  only  in 
denial,  and  the  plea  would  be  bad,  as  amounting  only  to  a 
traverse.  For  example,  in  an  action  for  breach  of  covenant, 
if  the  defendant  pleads  a  release,  he  admits  the  execution 
and  the  breach  of  the  covenant,  and  so  gives  color  to  the  dec- 
laration ;  and  if  the  plaintiff  replies  that  the  release  was 
obtained  by  duress,  he  impliedly  admits  the  execution  of  the 
release,  and  thus  gives  color  to  the  plea.  But  if  the  plaintiff 
reply  that  he  executed  the  release  to  a  person  other  than  the 
defendant,  his  replication  would  not  give  color,  and  therefore 
would  not  make  place  for  his  statement  of  new  matter. 
The  proper  replication  in  such  case  would  be  a  traverse, 
denying  that  the  release  pleaded  is  the  plaintiff's  deed ;  and 
proof  of  the  release  to  another,  which  is  an  evidential  fact, 
would  sustain  the  denial. 

72.  Form  of  Plea  in  Avoidance. — Following  is  a  form 
of  plea  in  bar  by  way  of  confession  and  avoidance,  and  in 
discharge  of  the  right  of  action  stated  in  the  declaration  in 
section  57,  ante. 

C.  D.  \  And  the  said  C.  D.,  by  G.  H.,  his  attorney,  comes 
ats.      ?  and  defends   the   wrong   and   injury,  when   and 

A.  B.  )  where  it  shall  behoove  him,  and  the  damages,  and 
whatsoever  else  he  ought  to  defend,  and  says,  that  after  the 
said  breach  of  covenant,  and  before  the  commencement  of  thiq 
suit,  to  wit,  on  the  day  of  ,  in  the  year  ,  the 

said  A.  B.,  by  his  certain  deed  of  release,  sealed  with  his  seal, 
and  now  shown  to  the  court  here,  did  remise,  release,  and  for- 
ever quitclaim  to  the  said  C.  D.,  his  heirs,  executors  and  ad- 
ministrators, all  damages,  cause  and  causes  of  action,  breaches 
of  covenant,  debts,  and  demands  whatsoever,  which  had  then 
accrued  to  the  said  A.  B.,  or  which  the  said  A.  B.  then  had 
against  the  said  C.  D.,  as  by  the  said  deed  of  release,  refer- 

1 1  Chit.  Fl.  527 ;  Steph.  PL  266  ;  Bliss  PI.  340 ;  Post,  240. 

5 


gg  73-74  HISTORY  OF  PLEADING.  QQ 

ence  being  thereto  had,  will  fully  appear.     And  this  the  said 
C.  D.  is  ready  to  verify. 

73.  Pleas  Puis  Darrein  Continuance. — Under  the  old 
practice,  the  law  allowed  the  proceedings  in  a  case  to  be  ad- 
journed over  from  one  term  to  another,  or  from  one  day  to 
another  in  the  same  term.  Such  adjournment,  when  allowed, 
was  entered  upon  the  record,  and  was  called  a  continuance.^ 
It  sometimes  happened  that  after  a  plea  had  been  pleaded, 
and  during  a  continuance,  some  new  matter  of  defense  arose. 
This  new  defense,  which  the  defendant  had  not  before 
had  opportunity  to  plead,  he  was  allowed,  upon  the  day 
fixed  by  the  continuance  for  his  reappearance,  to  plead 
as  a  matter  that  had  happened  after  the  last  continu- 
ance. 

A  plea  puis  darrein  continuance  is  not  a  departure  from 
the  former  plea^  but  is  a  waiver  of  it,  and  is  always  pleaded 
by  way  of  substitution  for  it.  Such  plea  may  be  in  abatement 
or  in  bar,  and  is  followed  by  replication  and  other  plead- 
ings, until  issue  is  attained.  Great  certainty  is  required  in 
pleas  of  this  kind,  and  they  must  be  verified  on  oath  before 
they  are  allowed.^ 

74.  Pleas  in  Estoppel. — All  pleas  in  bar  that  advance 
new  matter  are  called  special  pleas  in  bar,  to  distinguish  them 
from  pleas  that  do  not  advance  new  matter,  but  simply  deny 
that  previously  alleged  on  the  other  side.  Pleas  by  way  of  con- 
fession and  avoidance,  whether  in  excuse  or  in  discharge,  and 
pleas  puis  darrein  continuance  are  therefore  special  pleas 
in  bar.  There  is  another  kind  of  plea,  called  plea  in  estoppel, 
which  is  neither  by  way  of  traverse,  nor  by  way  of  confession 
and  avoidance.  Estoppel  arises  from  matter  of  record,  from 
deed,  or  from  matter  in  pais  ;  and  a  plea  of  this  kind,  with- 
out denying  or  admitting  the  matters  adversely  alleged,  re- 
lies merely  on  the  estoppel,  to  preclude  the  adverse  party 

1  If  an  interval  took  place  with-  of  court  by  the  interruption,  and 

out  such  adjournment  duly  obtain-  the    parties  could  not    thereafter 

ed  and  entered,  such  hiatus  in  the  proceed  in  the  action.     3  Bl.  Com. 

progress  of  the  suit  was  called  a  316  ;  Steph.  PI.  (Tyler's  ed.)  60. 
discontinuance ;  and  the  cause  and       ^  Steph.  PI.  156  ;  1  Chit.  PI.  658. 
the  parties  were  considered  as  out 


G7  COMMON-LAW  PROCEDURE.  §§75-76 

from  availing  himself  of  his  averments  inconsistent  therewith. 
Such  plea  simply  alleges  the  inconsistent  record,  deed,  or  act, 
to  which  the  plaintiff  was  party  or  privy,  and  prays  judgment 
if  he  shall  be  admitted  to  aver  contrary  thereto.^ 

A  plea  in  estoppel,  like  one  in  confession  and  avoidance, 
always  advances  new  matter  in  avoidance,  and  is,  therefore,  a 
special  plea  in  bar,  as  distinguished  from  pleas  by  way  of  trav- 
erse ;  but  it  differs  from  the  other  pleas  in  bar,  in  that  it 
neither  denies  nor  confesses  the  plaintiff's  allegations. 

75.  Must  Answer  the  Whole  Declaration.— All  pleas  by 
way  of  confession  and  avoidance  must  answer  the  whole 
declaration  ;  that  is,  they  must  confess  the  whole  declaration, 
without  omission,  condition,  or  qualification,  and  then  must 
as  fully  avoid  it.  For  examj)le,  if  in  an  action  for  slander, 
a  special  plea  alleges  that  A.  B.  spoke  the  words,  in  the 
hearing  of  defendant,  and  that  on  the  occasion  in  question 
the  defendant  simply  said  that  he  had  heard  A.  B.  say,  of 
and  concerning  the  plaintiff,  the  words  charged,  such  plea  is 
bad  because  it  does  not  admit  the  speaking  of  the  words  in 
the  unqualified  sense  charged  in  the  declaration.  Such  plea 
does  not  give  color  to  the  declaration.  Again,  if  the  plea 
should  allege  the  truth  of  the  words,  and  not  confess  the 
speaking  of  them,  a  material  part  of  the  declaration  would 
remain  unanswered.  The  truth  of  the  words  would  not  be 
material,  unless  the  defendant  spoke  them.  Under  this  rule, 
a  special  plea  that,  instead  of  confessing  the  contract  as  stated 
in  the  declaration,  should  assert  qualifications  and  conditions 
therein,  would  be  bad  as  a  special  plea,  for  it  would,  in  effect, 
controvert  the  plantiff's  allegations,  and  that  should  be  done 
by  a  traverse.^ 

Vr.  OF  PLEADINGS  SUBSEQUENT  TO  THE  PLEA. 

76.  The  Replication. — When  the  plea  traverses  the  dec- 
laration, and  properly  concludes  to  the  country,  the  plaint- 
iff must,  in  general,  join  issue  by  adding  the  similiter.  But 
when    the   plea  introduces  new  matter,  and  therefore  con- 

1  Gould  PI.  i.  18  ;  ii.  38, 43  ;  Steph.  '^  Ames'  Cases  on  PI.  69  ;  Davis  v. 
P;.  230.  Jlathevvs,  2  Ohio,  257. 


§77  HISTORY  OF  PLEADING.  gg 

eludes  with  a  verification,  the  plaintiff  may  reply  thereto. 
His  replication,  as  such  reply  is  called,  may  allege  matter 
in  estoppel,  may  traverse  the  plea,  may  confess  and  avoid  it, 
or  may  new  assign  the  cause  of  action.  The  traverse,  the 
estoppel,  and  the  confession  and  avoidance  have  been  fully 
explained  in  what  has  been  said  of  pleas  ;  and  the  traverse 
de  injuria,  which  is  used  only  in  the  replication,  has  been 
fully  explained.  It  remains  only  to  explain  the  kind  of 
replication  called  a  new,  or  novel,  assignment. 

Declarations  are  conceived  in  very  general  terms,  and  it 
sometimes  happens  that  the  defendant  mistakes  the  plaintiff's 
claim,  and  applies  his  plea  to  a  matter  different  from  that 
which  the  plaintiff  had  in  view.  For  example,  in  trespass  for 
assault  and  battery,  suppose  the  fact  to  be  that  the  defendant 
had  twice  assaulted  the  plaintiff,  and  that  one  of  these  as- 
saults was  justifiable,  and  the  other,  the  one  in  fact  sued  for, 
was  without  legal  excuse  ;  and  suppose  the  defendant  to 
justify,  in  a  plea  of  son  assault  demesne.  The  plaintiff 
can  not  safely  traverse  this  plea,  by  replication  de  injuria, 
because,  the  defendant  having  already  applied  his  plea  to  the 
justifiable  assault,  a  denial  must  necessarily  refer  to  the  same 
matter,  and  would  therefore  be  an  admission  that  the  de- 
fendant is  right  as  to  the  particular  assault  complained  of. 
In  such  case,  the  plaintiff  may,  to  remove  the  misconception 
of  the  defendant,  file  a  replication  describing  more  particu- 
larly the  assault  which  he  had  before  described  too  generally, 
and  showing  that  he  brought  his  action  for  an  assault  differ- 
ent from  that  referred  to  by  the  defendant.  Such  correction 
of  the  generality  of  the  declaration  is  called  a  new,  or  novel, 
assignment. 

A  new  assignment  is  in  the  nature  of  a  new  declaration, 
and  is  to  be  followed  by  plea,  and  not  by  rejoinder.  Of 
course,  a  new  assignment  may  generally  be  guarded  against 
by  anticipation  ;  as  in  the  case  supposed,  the  declaration  might 
charge  both  assaults,  in  separate  counts,  and  so  compel  the 
defendant  to  respond  to  both  in  his  plea.^ 

77.  Form  of  Replication. — Following  is  a  form  of  repli- 

1  Steph.  PI.  281  ;  1  Chit.  PI.  578. 


69  COMMON-LAW  PROCEDURE.  g§  78-79 

cation  by  way  of  confession  and  avoidance,  in  reply  to  the 
plea  in  section  72. 

A.  B.  )  And  the  said  plaintiff  says,  that  at  the  time  of 
V.        }    the  making  of  the  said  supposed  deed  of  release, 

C.  D.  /  he  was  unlawfully  imprisoned  and  detained  in 
prison  by  the  said  defendant,  until,  by  force  and  duress  of 
that  imprisonment,  he,  the  said  plaintiff,  made  the  supposed 
deed  of  release,  as  in  the  said  plea  mentioned.  And  this  the 
said  plaintiff  is  ready  to  vertify. 

78.  The  Rejoinder  and  Subsequent  Pleadings. — A  re- 
joinder is  the  defendant's  answer  to  the  replication.  It  must 
support,  and  not  depart  from,  the  plea,  and  is  governed,  in 
general,  by  the  same  rules  that  govern  pleas. 

Surrejoinders,  rebutters,  and  surrebutters  seldom  occur  in 
pleading  ;  and  it  will  be  sufficient  to  say  of  them,  that  they 
are,  in  general,  governed  by  the  rules  which  govern  the  pre- 
cedent pleadings  of  the  party  using  them.^ 

VII.   OF   DEMURRERS. 

79.  Nature  and  Oiflce  of  Demurrer. — Instead  of  travers- 
ing, or  confessing  and  avoiding,  tlie  matter  of  the  declara- 
tion, the  defendant  may,  by  demurrer,  question  its  suffi- 
ciency in  law  to  entitle  the  plaintiff  to  relief.  Demurrer  was 
not  known  to  the  civil-law  procedure,  but  the  court  exercised 
a  supervision  over  the  pleadings  as  they  were  presented,  and 
no  pleading  could  be  received  or  filed  without  the  sanction 
and  direction  of  the  court.^  But  at  common  law  the  plead- 
ings are  filed  or  served  without  the  knowledge  of  the  court, 
and  if  the  adversary  party  desires  to  have  the  sufficiency  of 
a  pleading  determined,  he  must  bring  it  to  the  attention  of 
the  court  by  demurrer. 

The  philosophy  of  the  demurrer  has  heretofore  been  ex- 
plained,3  but  it  may  here  be  added,  that  the  body  of  the 
declaration  must  state  all  that  is  essential  to  the  plaintiff's 
recovery  ;  for  he  cannot  prove  a  material  fact  not  so  alleged, 

'  1  Chit.  PI.  652  ;  Steph.  PI.  397.         »  Ante,  36. 
'  Ante,  43. 


§§80-81  HISTORY  OF  PLEADING.  70 

and  lie  can  recover  only  secundum  allegata  et  probata. 
Therefore,  if  his  recovery  is  limited  by  his  proofs,  and  his 
proofs  restricted  to  his  allegations,  it  follows,  that  if  his 
allegations  are  wanting  in  any  matter  essential  for  recovery, 
he  can  not  recover,  though  all  he  has  alleged  be  true.  For 
these  reasons,  the  defendant  may,  by  demurrer,  submit  the 
case  upon  the  facts  in  the  declaration,  admitted  thereby  to 
be  true. 

The  law  requires  every  pleading  to  be  sufficient  in  sub- 
stance, and  to  be  expressed  according  to  the  forms  of  law ; 
therefore,  a  demurrer  may  be  for  deficiency  in  substance  or 
in  form,  and  it  may  be  addressed  to  any  pleading  in  a  cause. 

80.  Joinder  in  Demurrer. — There  can  not  be  a  demurrer 
to  a  demurrer  ;  but  the  party  whose  pleading  is  opposed  by 
a  demurrer  must  formally  accept  the  issue  in  law  which  it 
tenders.  This  is  done  by  a  formal  reaffirmance  of  the  legal 
sufficiency  of  the  pleading  demurred  to,  called  a  joinder  in 
demurrer.  There  is  this  difference  between  joinder  in 
issue,  and  joinder  in  demurrer  ;  a  party  is  required  to  accept 
an  issue  in  fact,  only  when  it  is  well  tendered  both  in  point  of 
substance  and  in  point  of  form  ;  ^  while  an  issue  in  law  must 
be  accepted,  whether  well  or  ill  tendered — that  is,  whether 
the  demurrer  be  in  proper  form  or  not ;  an  informal  de- 
murrer being  regarded  as  sufficient  to  bring  the  record  before 
the  court  for  inspection  and  adjudication.^  Failure  to  join 
in  demurrer  works  a  discontinuance  of  the  action  or  the 
defense,  as  the  case  may  be.^ 

81.  Form  and  Substance  Distinguished. — All  matters 
alleged  that  are  essential  to  the  right  or  the  defense  asserted 
are  matters  of  substance ;  and  all  requisite  allegations  not 
essential  to  the  right  or  the  defense  are  matters  oiform.  In 
other  words,  if,  without  reference  to  the  manner  of  pleading 
it,  the  matter  pleaded  be  in  itself  insufficient,  the  defect  is  in 
substance  ;  but  if  matter  alleged  be  not  stated  in  the  manner, 
or  with  the  fullness,  required  by  the  rules  of  pleading,  the 
defect  is  in  form.     Failure  to  allege  conversion,  in  an  action 

'  Ante.  62  ;  Steph.  PI,  292.  »  Gould  PI.  ix.  33. 

2  Steph.  PI.  293. 


71  COMMON-LAW  PROCEDURE.  §§  82-83 

of  trover  ;  omission  of  malice,  in  an  action  for  malicious  pros- 
ecution ;  and  of  consideration,  in  an  action  of  assumpsit, 
would  be  defects  in  substance.  Duplicity,  argumentativeness, 
and  a  special  plea  equivalent  to  the  general  issue,  are  defects 
in  form.i 

82.  General  and  Special  Demurrers. — Demurrers  are 
of  two  kinds,  general  and  special.  A  general  demurrer 
questions  the  sufficiency  of  the  pleading  to  which  it  is  ad- 
dressed, in  general  terms,  without  assigning  any  particular 
ground  of  objection ;  a  special  demurrer  adds  to  this  a  speci- 
fication of  particular  defects  in  such  pleading.  If  the  defect 
aimed  at  be  one  of  substance,  a  general  demurrer  is  sufficient ; 
but  where  the  fault  is  in  matter  of  form,  a  special  demurrer 
is  necessary.  Upon  general  demurrer,  no  mere  matter  of 
form  can  be  objected  to ;  but  upon  special  demurrer,  advan- 
tage may  be  taken  not  only  of  the  particular  faults  specified, 
but  of  faults  of  substance  as  well.  The  reason  is,  that  a 
special  demurrer,  both  in  form  and  in  effect,  is  a  general 
demurrer  and  something  more — it  objects  in  general  terms, 
and  then  specifies  particular  faults. 

A  special  demurrer  must  point  out  with  particularity  the 
ground  of  objection.  For  example,  a  demurrer  for  duplicity, 
asserting  merely  that  the  pleading  is  double  and  informal, 
would  be  treated  only  as  a  general  demurrer.  A  demurrer 
for  such  cause  should  point  out  specifically  in  what  partic- 
ular the  duplicity  consists.  And  the  same  particularity  is 
necessary  in  all  demurrers  for  faults  in  mere  form.^ 

To  the  rule  that  a  general  demurrer  reaches  only  faults  of 
substance,  there  is  an  exception  as  to  dilatory  pleas ;  for  as 
these  are  not  favored  in  law,  formal  defects  therein  may  be 
taken  advantage  of  by  general  demurrer.^ 

83.  Demurrer  Admits  Facts  Well  Pleaded. — A  de- 
murrer admits  all  such  matters  of  fact  as  are  well  pleaded. 
The  party  having  chosen  to  demur,  rather  than  to  plead,  is 
regarded  as  admitting  the  truth  of  the  facts  alleged,  and  as 
questioning   only  their   legal   sufficiency ;   which   question, 

^  Ames'  Cases  on  PI.  14  ;  Gould  2  Gould  PI.  ix.  16  ;  Kipp  v.  Bell, 
PI.  ix.  17,  18.  86  III.  577. 

5  Gould  PI.  ix.  12. 


§84  HISTORY  OF  PLEADING.  7^ 

being  a  matter  of  law,  is  referred  to  the  court.  But  this 
admission  is  limited,  however,  to  such  facts  as  are  properly- 
pleaded.  If  the  demurrer  be  general,  it  is  said  to  admit  all 
material  facts,  though  they  be  informally  pleaded.^  But  a 
conclusion  of  law  stated  in  the  pleading  demurred  to  is  not 
so  admitted  ;  nor  is  a  statement  contrary  to  the  court's  judi- 
cial knowledge  so  admitted ;  nor  an  allegation  which  the 
pleader  is  estopped  to  make ;  nor  an  averment  of  a  thing 
impossible,  or  of  facts  that  make  a  departure.^ 

84.  Effects  of  Pleading  Over. — Some  faults  that  render 
a  pleading  demurrable  are  aided — that  is,  remedied — by 
pleading  over  without  demurrer.  All  formal  defects  are 
thus  aided ;  but  insufficiency  in  matter  of  substance  is  not, 
as  a  rule,  so  aided.  It  has  been  shown  that  a  demurrer  ad- 
mits the  truth  of  the  facts  pleaded,  and  questions  only  their 
legal  sufficiency ;  but  it  can  not  be  said,  e  converso^  that  a 
pleading  which  questions  the  truth  of  facts  pleaded,  admits 
their  legal  sufficiency.  On  the  contrary,  the  legal  sufficiency, 
in  matter  of  substance,  of  any  pleading  is  an  open  question 
throughout  the  case.^  It  is  a  principle  of  procedure,  that 
the  court  is  bound,  in  legal  contemplation,  to  examine  the 
whole  record  before  giving  judgment  in  any  case,  and  then 
to  give  judgment  according  to  the  legal  right  as  it  may 
appear  from  the  whole  record,  regardless  of  any  issues  in  law 
or  in  fact,  or  of  any  prior  decisions  thereof.*  Therefore,  even 
after  issue  in  fact  and  verdict  thereon,  the  unsuccessful 
party  may  take  advantage  of  the  legal  insufficiency  of  his 
adversary's  pleading,  by  motion  for  judgment  non  obstante 
veredicto,  or,  after  judgment,  by  writ  of  error.^  Of  course,  if 
the  pleading  of  one  party  is  substantially  bad  in  law,  a  verdict, 
which  merely  finds  it  true  in  fact,  can  not  entitle  that  party 
to  a  judgment,  which  is  merely  the  application  of  the  law  to 
an  ascertained  state  of  facts.^ 

Sometimes  a  defect  in  substance  is  aided  by  the  pleading 
of  the  other  party ;  as,  where  the  declaration  omits  a  material 
fact,  and  the   plea  alleges   such  fact,  the  defect  is  thereby 

1  Steph.  PI.  221.  "  Steph.  PI.  204,  205. 

2  Gould  PI.  ix.  25-29.  «  Steph.  PI.  186,  201,  224. 

3  Ante,  35.  «  Steph.  PI.  186  ;  Ante,  8. 


73  COMMON-LAW  PROCEDURE.  §  86 

cured.^  And  sometimes  a  fault  in  pleading  is  aided  by  ver- 
dict. Where  the  issue  joined  is  such  as  necessarily  to  re- 
quire proof,  on  the  trial,  of  facts  defectively  stated  in,  or 
omitted  from,  the  pleadings,  a  verdict  that  could  not  be  found 
without  proof  of  such  facts  will  cure  the  defect  in  the  plead- 
ings. This  rule  of  aider  by  verdict  rests  upon  the  logical 
ground  that  the  verdict  must  be  considered  as  true,  and  as 
founded  on  legal  evidence,  and  therefore  it  must  be  presumed 
that  every  fact  necessary  to  warrant  such  finding  was  proved 
on  the  trial ;  and  thus  the  verdict,  by  legal  intendment, 
sometimes  supplies  facts  omitted  from  the  pleadings.  But 
omitted  facts  not  implied  in,  or  inferrible  from,  those  alleged 
and  found,  can  not  be  presumed  to  have  been  proved.  Thus, 
if  a  declaration  in  assumpsit  fail  to  allege  consideration,  a 
verdict  for  the  plaintiff  will  not  cure  the  omission  ;  for  the 
fact,  alleged  and  proved,  that  the  defendant  promised,  fur- 
nishes no  legal  inference  that  the  promise  was  founded  upon 
a  consideration.'-^ 

85.  A  Demurrer  Searches  the  Record. — On  demurrer 
to  any  pleading,  the  court  will  consider  the  whole  record,  and 
give  judgment  for  the  party  who,  upon  the  whole  record,  is 
entitled  to  it,  disregarding  merely  formal  faults.  For  ex- 
ample, on  demurrer  to  a  plea,  if  the  plea  be  found  bad,  yet  if 
the  declaration  be  bad  in  substance,  judgment  should  be  for 
the  defendant ;  for,  the  defects  in  substance  in  the  declaration 
not  being  aided  by  the  plea,  the  plaintiff  must  ultimately 
fail,  and  suffer  judgment  against  him.  As  it  is  sometimes 
said,  "  a  bad  plea  is  sufficient  for  a  bad  declaration."  Again, 
if,  on  demurrer  to  the  replication,  the  declaration  be  good, 
and  both  plea  and  replication  bad  in  substance,  judgment 
should  be  against  the  defendant,  because  the  first  substantial 
fault  is  on  his  part.^  This  rule  is  but  an  application  of  the 
general  principle  before  stated,  that  when  judgment  is  to  be 
given,  at  whatever  stage  of  the  case,  it  must  be  given  upon 
consideration  of  the  whole  record. 


'  Gould  PI.  iii.  192.  »  Gould  PI.  ix.  3&^0  ;  Steph.  PI. 

2Steph.   PL   224;    Gould  PI.   x.    222. 


§  86  HISTORY  OF  PLEADING.  74 

This  rule  as  to  judgment  on  demurrer  is  subject,  however, 
to  some  exceptions.  If  the  plaintiff  demur  to  a  plea  in  abate- 
ment, and  the  plea  be  found  bad,  any  defect  in  the  declara- 
tion will  be  disregarded,  and  the  judgment  will  be  respon- 
deat ouster.  And  if,  on  the  whole  record,  the  right  be  found 
with  the  plaintiff,  judgment  will  not  be  given  for  him,  unless 
he  has  himself  put  his  action  on  that  ground.  For  example, 
in  an  action  on  a  covenant  to  perform  an  award,  and  not  to 
prevent  the  arbitrators  from  making  an  award,  if  the  plaint- 
iff assign  as  a  breach  that  the  defendant  would  not  pay  the 
sum  awarded,  and  the  defendant  plead  that  before  the  award 
he  revoked,  by  deed,  the  authority  of  the  arbitrators,  such 
plea  is  good  on  demurrer ;  for  it  is  a  good  answer  to  the 
breach  alleged.  The  matter  stated  in  the  plea  would  give  the 
plaintiff  a  right  of  action,  if  he  had  alleged  it ;  but  this  can 
not  avail  him,  for  he  has  put  his  action  on  other  ground. 

In  examining  the  whole  record,  the  court  will  disregard 
defects  in  matters  of  form,  such  as  should  have  been  the 
subject  of  special  demurrer.^  The  reason  for  such  disregard 
of  formal  errors  is,  that  form  is  intended  only  as  a  security 
for  substance,  and  when  a  party,  by  answering  a  pleading, 
admits  it  to  be  good  in  substance,  and  admits  that  he  under- 
stands it,  he  ought  not  thereafter  to  object  to  a  want  of  form, 
that,  as  to  him,  was  not  essential  for  the  purposes  of  justice.^ 

86.  Judgment  on  Demurrer. — Judgment  is  pronounced 
upon  an  admitted,  or  an  ascertained,  state  of  facts.  The 
pleadings  always  terminate  in  issue  joined  upon  a  traverse, 
or  in  issue  joined  upon  demurrer.  In  the  one  case,  all  the 
allegations,  except  that  upon  which  the  traverse  is  taken, 
stand  iidmitted  ;  in  the  other  case,  all  the  pleadings  stand  ad- 
mitted— the  last  one  by  the  demurrer,  and  each  preceding  one 
by  that  immediatel}^  following  it.  If  issue  joined  upon  a 
traverse  be  decided  against  the  party  traversing,  the  truth  of 
all  the  facts  alleged  in  the  pleadings  is  established,  and  the 
ascertained  state  of  facts  is  the  same  as  the  admitted  state  of 
facts  would  be,  if  the  pleading  traversed  had  been  demurred 
to.     For  example,  if  a  plea  in  confession  and  avoidance  be 

'  Steph.  PI.  223.  2  Evans  PI.  38. 


75  COMMON-LAW  PROCEDURE.  §  86 

traversed,  and  issue  thereon  decided  for  the  defendant,  the 
verdict  finds  the  plea  true,  and  the  plea  having  confessed  the 
facts  in  the  declaration,  all  the  facts  alleged  on  both  sides  are 
established.  And  if  such  plea  be  demurred  to,  all  the  facts 
well  pleaded  therein  are  admitted  by  the  demurrer,  and  the 
admitted  state  of  facts  is  then  the  same  as  the  ascertained 
state  of  facts  before  supposed.  But  if  in  such  case  the  issue  in 
fact  be  found  against  the  defendant,  his  plea  is  destroyed,  and 
the  case  stands  with  the  facts  of  the  declaration  established. 

When  the  facts  of  a  case  are  established,  either  upon  trial 
or  upon  demurrer,  it  is  the  duty  of  the  court  to  give  judg- 
ment for  the  party  entitled  thereto  ;  and  this  is  determined 
by  an  inspection  of  the  whole  record,  bearing  in  mind  that 
the  legal  sufficiency  of  any  pleading  is  not  admitted  by  any 
subsequent  pleading,  or  by  any  state  of  the  pleadings.^ 

From  what  has  been  said  it  will  be  seen  that  when  a  party 
demurs,  he  in  effect  prays  the  judgment  of  the  court  upon 
the  pleadings  as  they  stand ;  and  the  adverse  party,  by  join- 
ing in  demurrer,  prays  the  like  judgment.  The  judgment 
follows  the  nature  of  the  pleading  demurred  to.  Upon 
demurrer  to  a  dilatory  plea,  judgment  for  the  defendant  is, 
that  the  writ  or  declaration  be  quashed,  that  the  suit  be  dis- 
missed from  that  jurisdiction,  or  that  it  be  stayed;  if  the 
judgment  be  for  the  plaintff,  it  is  respondeat  ouster — that 
the  defendant  answer  over.  In  like  manner,  upon  demurrer 
to  any  of  the  pleadings  which  go  to  the  action,  the  judgment 
is  final.  If  for  the  plaintiff,  it  is  quod  recuperet — that  he 
recover ;  if  for  the  defendant,  it  is  quod  eat  sine  die — that 
he  go  hence  without  day.  So  that,  judgment  on  demurrer  to 
any  pleading  is  the  same  that  it  would  be  upon  an  issue  in 
fact,  joined  upon  a  traverse  of  the  same  pleading,  and  decided 
in  favor  of  the  same  party .^ 

A  judgment  on  demurrer,  if  upon  the  merits  of  the  cause, 
is  equally  conclusive,  as  an  adjudication  of  the  right  in  con- 
troversy, as  judgment  for  the  same  party,  entered  upon  a  ver- 
dict, would  be.^ 

'  Lang.  Eq.  PI.  96 ;  Ante,  35.  »  Gould  PL  ix.  4a 

a  Steph.  PI.  192  ;  Gould  PL  ix.  41, 
42. 


CHAPTER  X. 

DIVISION  OF  ACTIONS. 
I.   BEAL  AND   MIXED   ACTIONS. 

87.  Classification  of  Actions. — The  orderly  parts  of 
pleading  having  been  explained,  and  the  general  form  and 
manner  of  pleading  having  been  shown,  the  several  forms  of 
action  will  now  be  defined  and  distinguished,  and  their  scope 
and  uses  explained.  The  actions  known  to  the  common-law 
procedure  are  divided,  according  to  their  subject-matter,  into 
actions  real,  personal,  and  mixed. 

Real  actions  are  for  specific  recovery  of  lands,  tenements, 
or  hereditaments.  Personal  actions  are  for  the  recovery  of 
specific  chattels,  or  for  pecuniary  satisfaction  for  the  breach 
of  a  contract,  or  an  injury  to  person  or  property.  Mixed 
actions  partake  of  the  natures  of  the  other  two  divisions,  and 
are  for  the  recovery  of  real  property,  and  for  damages  sus- 
tained in  respect  to  such  property.^ 

The  real  and  mixed  actions  are,  writ  of  right,  formedon, 
writ  of  dower,  quare  irapedit,  and  ejectment.  But  this 
ancient  division  of  actions  is  now  of  little  importance,  be- 
cause, by  various  statutes  in  England,  most  of  the  real  and 
mixed  actions  have  been  abolished,  and  the  procedure  in  those 
that  remain  has  been  much  simplified. 

Personal  actions  are  also  divided,  according  to  the  nature 
of  the  wrong  to  be  redressed,  into  actions  ex  contractu^ 
which  are  for  the  breach  of  a  contract,  and  actions  ex  delicto, 
which  are  for  wrongs  not  connected  with  contract.  The 
actions  in  form  ex  contractu  are,  debt,  covenant,  assumpsit, 
and  detinue ;  those  in  form  ex  delicto  are,  trespass,  trespass 
on  the  case,  trover,  and  replevin .^ 

'  Steph.  PI.  61 ;  Heard  PI.  14  ;  1  '  It  is  probable  that  this  classifi- 
Chit.  PL  97  ;  3  Bl.  Com.  117.  cation  of  actions  led  to  the  corre- 

76 


77  COMMON-LAW  PROCEDURE.  §  88 

88.  Actions  Real  and  Mixed. —  Writ  of  right  is  the 
remedy  appropriate  where  one  claims  the  specific  recovery  of 
corporeal  hereditaments  in  fee-simple,  founding  his  title  on 
the  right  of  property,  or  mere  right,  arising  either  from  his 
own  seizin,  or  the  seizin  of  his  ancestor  or  predecessor.^ 

Formedon  is  the  proper  action  where,  by  an  alienation  of 
the  tenant  in  tail  the  reversion  or  remainder  is,  by  tlie  failure 
of  the  particular  estate,displaced  and  turned  into  a  mere  right.^ 

Writ  of  dower  lies  for  a  widow  claiming  the  specific  re- 
covery of  her  dower,  no  part  thereof  having  yet  been  assigned 
to  her.  This  is  dower  unde  nihil  habet.  There  is  also  a 
writ  of  right  of  dower,  seldom  used,  which  is  to  recover  the 
residue  of  dower ;  part  of  it  having  been  already  assigned  by 
the  tenant.^ 

Quare  impedit  is  the  form  of  action  adopted  to  try  a  dis- 
puted title  to  an  advowson.  It  lies  to  recover  the  presenta- 
tion, where  the  right  to  a  benefice  is  obstructed.* 

In  formedon,  the  general  issue  is  ne  dona  pas,  or  noii 
dedit  ;  in  quare  impedit,  it  is  ne  disturha  pas.  In  the  other 
real  actions  there  seems  to  be  no  fixed  form  of  general  issue. 

In  very  early  times,  there  were  in  use  two  other  remedies  for 
the  recovery  of  possession.  These  were  :  (1)  a  writ  of  entry, 
wherein  the  demandant  maintained  his  right  to  possession 
by  showing  the  unlawful  commencement  of  the  defendant's 
possession  ;  and  (2)  a  writ  of  assize,  wherein  the  demandant 
maintained  his  right  by  showing  his  own  or  his  ancestor's 
possession.  These  possessory  remedies,  long  since  obsolete, 
decided  nothing  as  to  the  right  of  property.  Their  only 
office  was  to  restore  the  demandant  to  possession,  when  found 

spending  classification  of  property,  recovered  ;  in  the  other,  the  remedy- 
Under  the  old  feudal  system,  things  was    against    the    person    of    the 
real    were    denominated    "  lands,  wrong-doer.     Hence  the  designa- 
tenements,    and    hereditaments  ;  "  tions,  real  property,  and  personal 
while  things  personal  were  called  property.    Williams  on  Real  Prop. 
"  goods  and  chattels."     But  it  be-  6. 
came    obvious  that    the  essential  '  Steph.  PI.  66. 
difference  between  lands  and  goods  2  3  bi_  Com.  191. 
was  in  the  remedies  for  the  depri-  '  Steph.  PI.  67. 
vation  thereof.     In  the  one  case,  *  Steph.  PL  68. 
the  real  thing — the  land  itself,  was 


§§  89-90  HISTORY  OF  PLEADING.  Yg 

entitled  thereto.  Adversary  claims  as  to  the  right  of  prop- 
erty could  be  determined  only  in  the  action  known  as  "  writ 
of  right,'"  or  in  some  other  action  of  that  nature.^ 

89.  The  Action  of  Ejectment. — This  action  lies  for  the 
recovery  of  possession  of  real  property,  and  of  damages  for 
the  unlawful  detention  thereof.  The  history  of  this  action 
well  illustrates  the  way  in  which  fictions  were  resorted  to  in 
the  adaptation  of  procedure  to  new  requirements,  without 
changing  its  external  form ;  and  it  shows  the  strong  attach- 
ment to  form,  which  characterizes  the  development  of  the 
common-law  system  of  procedure. 

The  action  of  ejectment  was  invented  to  enable  a  tenant 
for  a  term  of  years  to  recover  possession  of  the  demised  lands. 
Originally,  the  interest  of  a  tenant  for  years  was  not  regarded 
as  an  estate,  nor  as  a  right  which  the  courts  would  specific- 
ally restore  to  him  when  wrongfully  dispossessed  ;  and  his 
only  remedy  against  a  wrongful  ejector  was  a  personal  action 
of  trespass,  to  recover  damages.  In  the  course  of  time,  how- 
ever, his  interest  in  the  land  came  to  be  regarded  as  a  low 
kind  of  estate,  and  the  courts  determined  that  he  was  entitled 
not  only  to  recover  damages,  but  that,  by  way  of  collateral 
and  additional  reliaf,  he  should  recover  possession  of  the 
land  itself  for  the  term  of  which  he  had  been  ousted.  The 
action  of  trespass  in  such  case  was  accordingly  so  modified  as 
to  give  the  tenant  this  additional  relief,  and  was  thereafter 
known  as  the  action  of  ejectment.  This  new  action  was  de- 
signed solely  for  the  relief  of  tenants  for  years,  and  it  was 
applicable  only  where  there  was  a  real  demise,  an  actual 
tenant,  and  a  wrongful  ejector  who  detained  the  possession  ; 
it  was  free  from  fiction,  and  was  limited  to  the  relief  of  ten- 
ants for  years. 

90.  Ejectment,  Continued. — The  old  actions  for  the  re- 
covery of  lands  were  embarrassed  by  many  technicalities  and 
much  cumbersome  machinery.  To  obviate  their  defects,  and 
to  provide  a  remedy  adapted  to  all  cases,  the  courts  conceived 
the  idea  of  employing  the  action  of  ejectment  as  a  substitute 
for  these  intricate  modes  of  procedure.     It  was  already  per- 

>  3  BL  Ckim.  180. 


79  COMMON-LAW  PROCEDURE.  §91 

ceived  that  when  both  the  tenant  for  life  and  his  lessor 
were  wrongfully  removed  from  the  land,  an  action  of  eject- 
ment by  the  tenant  restored,  not  only  the  tenant  who  brought 
the  action,  but  his  lessor  as  well ;  because,  the  possession  of 
the  tenant  being  in  law  the  possession  of  the  lessoi-,  the  res- 
toration of  the  lessee  to  the  actual  possession  was,  ipso  facto^ 
a  restoration  of  the  lessor  to  his  former  condition.  This  in- 
cidental result  of  ejectment  suggested  the  idea  of  making  a 
lease  to  serve  as  the  foundation  for  extending  the  action  to 
cases  not  already  within  its  purview. 

Fiction  was  now  resorted  to.  As  none  but  tenants  who 
had  been  ousted  from  a  term  of  years  could  maintain  the 
action,  to  enable  one  claiming  the  land  in  fee  to  avail  himself 
of  the  action,  a  fictitious  tenant,  say  John  Doe,  was  named  in 
the  declaration  as  plaintiff,  and  was  made  to  allege  a  lease  to 
himself  from  the  real  person  who  claimed  to  own  the  lands 
iw  fee,  and  wlio  sought  to  establish  his  ownership  by  the 
action.  Then  as  the  action  could  be  maintained  only  against 
one  in  possession,  and  as  the  adverse  claimant  of  the  fee 
might  not  be  in  possession,  a  fictitious  ejector,  say  Richard 
Roe,  called  the  casual  ejector^  was  named  as  defendant.  The 
real  adversary  was  notified,  and  was  allowed  to  become  de- 
fendant in  the  stead  of  the  casual  ejector,  upon  condition  that 
he  confess  the  alleged  lease  and  the  alleged  ouster,  both  of 
which  were  mere  fictions.  This  admission  of  the  lease  was 
construed  as  admitting  its  validity  only  as  between  the 
parties  to  it ;  that  is,  it  was  an  admission  that  the  alleged 
lessor  had  made  as  good  a  lease  as  he  could  make  if  in  pos- 
session. The  question  to  be  tried  is,  whether  the  plaintiff's 
lessor  had  title  ;  and  this  is  tried  between  the  real  parties. 
In  this  way  the  action  was  completely  transformed,  and 
ejectment  became  the  usual  remedy  for  the  trial  of  titles  to 
real  property. 

91.  Ejectment,  Continued. — Ejectment  will  lie  only  for 
corporeal  hereditaments,  or  things  tangible,  upon  which  an 
entry  can  be  made,  and  of  which  the  sheriff  can  deliver  actual 
possession.  To  maintain  the  action,  the  plaintiff  must  have 
the  legal  title,  whether  in  fee  or  for  a  less  estate,  and  he 
must  have  a  present  right  of  entry.     A  mere  equitable  in- 


^§  92-83  HISTORY  OF  PLEADING.  gO 

terest  will  not  support  the  action.  The  plaintiff  must  recover 
on  the  strength  of  his  own  title,  and  not  on  the  insufficiency 
of  his  adversary's  title. 

The  general  issue  in  ejectment  is,  not  guilty  ;  and  this,  bjr 
the  terms  of  the  consent  rule,  is  the  only  issue  that  may  be^ 
pleaded,  unless  leave  be  obtained  to  plead  specially.  The- 
declaration  avers  only  that  the  plaintiff's  lessor  had  demised 
to  him  a  certain  piece  of  land,  for  a  certain  time  not  yet  ex- 
pired, and  that  the  casual  ejector  ejected  him  therefrom. 
Strictly,  the  defendant's  plea  of  not  guilty  would  put  in  issue- 
only  the  ouster ;  but  the  question  really  tried  is,  whether  the 
plaintiff's  lessor  had  right  to  possession. 

Judgment,  if  for  the  plaintiff,  is,  that  he  recover  his  term^ 
of  and  in  the  tenements,  with  damages  and  costs.  A  writ  of 
execution,  called  habere  facias  possessionem^  issues  upon  such, 
judgment,  to  put  the  plaintiff  in  possession  of  the  property.* 

92.  Action  for  Mesne  Profits. — The  action  of  ejectment, 
being  brought  by  a  nominal  plaintiff  against  a  nominal  de- 
fendant, and  for  a  supposed  ouster,  only  nominal  damages 
are,  in  general,  given  therein.  For  the  injury  sustained  by 
the  real  plaintiff  by  being  kept  out  of  the  mesne  profits,  the 
common  law  provided  an  action  which  is,  in  form,  an  action 
of  trespass,  but  is,  in  effect,  to  recover  the  rents  and  profits  of 
the  estate.  The  right  to  sue  in  trespass  for  mesne  profits  is 
a  consequence  of  a  recovery  in  ejectment;  and  in  such  action 
the  judgment  in  ejectment  is  conclusive  evidence  of  plaint- 
iff's right  to  all  profits  accrued  after  the  date  of  the  ouster 
complained  of  in  the  ejectment  suit.^ 

II.    ACTIONS  IN  FORM  EX  CONTRACTU. 

93.  The  Action  of  Debt. — This  action  is  so  called  be- 
cause it  lies  for  the  recovery  of  a  debt  eo  nomine  et  in 
numero.  The  gist  of  the  action  is  the  duty  of  the  defendant 
to  pay ;  and  not  his  promise  to  pay.  It  is  a  more  extensive 
remedy  for  the  recovery  of  money  than  either  assumpsit  or 
covenant ;  for  assumpsit  will  not  lie  upon  a  specialty,  and 

1  1  Chit.  PI.  187  ;  Steph.  PI.  94,  ^  3  b1.  Com.  205  ;  1  Chit.  PI.  193  ; 
119  ;  Evans  PI.  278-290.  2  Grlf.  Ev.  332. 


81  COMMON-LAW  PROCEDURE.  §03 

covenant  will  not  lie.  upon  a  simple  contract,  whereas  deLt 
will  lie  upon  either. 

Debt  will  lie  for  money  lent,  for  money  had  and  received, 
for  mone}^  due  on  an  account  stated,  foi-  work  and  labor,  for 
the  price  of  goods,  for  use  and  occupation,  on  notes  and  bills, 
on  bonds  conditioned  for  the  pa3'meiit  of  money,  on  judg- 
ments, and  on  penal  statutes,  eitlier  at  the  suit  of  the  party 
aggrieved,  or  of  a  common  informer.  It  is  the  proper  remedy 
in  general,  where  the  demand  is  for  a  liquidated  and  certain 
sum,  and  is  not  for  damages.^ 

Debt  is  of  two  forms  :  in  the  debet  (lie  owes),  which  is 
the  common  form;  and  in  the  detinet  (he  detains),  which 
lies  for  the  specific  recovery  of  a  certain  quantity  of  goods, 
under  a  contract  to  deliver  them.  This  latter  form  differs 
from  the  action  of  detinue,  in  that  the  plaintiff  need  not  have 
a  property  in  any  specific  goods  at  the  time  he  brings  his  action. 

The  "declaration  in  debt  states  the  operative  facts  showing 
an  indebtedness  in  a  certain  sum,  that  it  is  past  due,  and  that 
it  is  unpaid  ;  but  it  does  not,  as  in  assumpsit,  state  a  promise 
to  pay. 

The  action  of  debt  being  maintainable  for  a  variety  of  de- 
mands, the  pleas  therein  are  correspondingly  varied.  In  debt 
on  simple  contract,  the  general  issue  formerly  was  nil  dehet^ 
— "  that  he  does  not  owe  the  sum  demanded,  or  any  part 
thereof."  This  traverse,  being  in  the  present  tense,  and  the 
declaration  simply  alleging  an  existing  indebtedness,  it  was 
held  that  any  evidence  tending  to  show  that  there  was  no 
subsisting  debt  when  the  suit  was  commenced,  was  admis- 
sible ;  and  under  this  literal  interpretation  of  the  j^lea  of  nit 
debet,  payment,  the  statute  of  limitations,  and  other  defenses 
of  new  matter,  were  available  to  the  defendant,  without  any 
notice  thereof  to  the  defendant.  To  remedy  this  evil,  the 
plea  of  nil  debet,  in  debt  on  simple  contract,  was  abolished, 
and  instead  thereof  the  defendant  was  allowed  to  plead  nun- 
quam  indebitatus — "  he  never  was  indebted  ; "  or  to  plead 
in  confession  and   avoidance.^     In  debt  on  a  specialty,  the 


»  1  Chit.  PL  1C8  ;  Steph.  Jl.  77.  2  1  chit.  PI.   481.  518,  743  ;  Mc- 

Kyring  v.  Bull,  16  N.  Y.  297. 

6 


i<  94  HISTORY  OF  PLEADING.  82 

general  issue  is  non  est  factum — "  it  is  not  his  deed."  This 
plea  operates  as  a  denial  of  the  execution  of  the  deed  in  point 
of  fact  only  ;  and  all  facts  showing  that  the  deed  is  merely 
voidable  must  be  specially  pleaded.^  In  debt  on  a  record, 
the  general  issue  is  nul  tiel  record.  This  only  puts  in  issue 
the  existence  of  the  record,  and  any  matter  in  discharge  must 
be  specially  pleaded.  In  debt  upon  a  statute,  nil  debet 
is  the  proper  plea,  though  not  guilty  has  been  held  sufficient. 

Judgment  in  debt,  if  for  the  plaintiff,  is,  that  he  recover  his 
debt  and  his  costs ;  if  for  the  defendant,  that  he  recover  his 
costs. 

94.  The  Action  of  Covenant. — The  rules  respecting 
this  action  are  few  and  simple.  It  lies  to  recover  damages 
for  the  breach  of  a  contract  under  seal.  In  debt,  the  plaint- 
iff relies  upon  the  nature  and  essence  of  the  obligation  ;  in 
covenant,  he  relies  upon  its  form.  Where  the  action  is  for 
breach  of  an  instrument  under  seal,  and  the  sum  demanded  is 
fixed  and  certain,  either  covenant  or  debt  will  lie  ;  but  if  the 
sum  demanded  in  such  case  is  unliquidated,  covenant  is  the 
only  proper  remedy.  Debt  is  the  only  action  with  which 
covenant  has  any  common  ground. 

The  declaration  in  covenant  should  set  forth  so  much  of 
the  covenant  as  will  show  the  primary  right  and  duty,  and 
that  the  contract  is  under  seal,  and  should  make  profert  there- 
of, or  show  an  excuse  for  its  omission.  Profert  in  curia 
is  usually  in  these  words :  "  Which  said  writing  obligatory, 
•sealed  with  the  seal  of  the  defendant,  the  plaintiff  now  brings 
here  into  courts  The  consideration  need  not,  in  general,  be 
stated  ;  but  if  the  performance  thereof  is  a  condition  precedent, 
such  performance  must  be  averred.^  The  declaration  should 
assign  a  breach  of  the  covenant  by  the  defendant,  and  should 
lay  damages. 

Tlie  general  issue  in  covenant  is  said  to  be  non  est  factum 
— that  the  said  supposed  writing  obligatory  is  not  his  deed. 
Strictly,  this  plea,  in  covenant  as  in  debt  on  a  spe- 
cialty, denies  only  the  execution  of  the  deed,  and  does  not 
traverse    the    whole    declaration.     It    directly    denies    the 

'  1  Chit.  PI.  484,  518,  743.  «  Gould  PL  iv.  13  ;  1  Chit.  PL  120. 


83  COMMON-LAW  PROCEDURE.  §95 

covenant,  and  only  indirectly  denies  the  breach ;  but  it  is  the 
most  general  form  of  denial  of  which  the  action  admits.^ 

All  other  defenses,  including  as  well  those  which  make  the 
deed  void  as  those  which  render  it  voidable,  must  be  speci- 
ally pleaded.- 

Judgment  in  covenant,  if  for  the  plaintiff,  is,  that  he  re- 
cover an  ascertained  sum  as  his  damages  for  the  breach  of  the 
covenant,  together  with  his  costs ;  if  for  the  defendant,  the 
judgment  is  for  costs. 

95.  The  Action  of  Assumpsit. — This  action — so  called 
because,  when  the  pleadings  were  in  Latin,  the  word  assum- 
sit  (he  promised)  was  always  used  in  the  declaration  to  de- 
scribe the  defendant's  undertaking — is  for  the  recovery  of 
damages  for  the  breach  of  a  simple  contract,  whether  it  be 
written  or  unwritten,  express  or  implied. 

In  early  times,  the  only  remedy  for  breach  of  an  unsealed 
contract  was  an  action  of  debt.  But  in  this  action  the  de- 
fendant had  the  right  to  wage  his  law ;  that  is,  if  the  defend- 
ant, after  denying  the  indebtedness,  would  swear  that  he  did 
not  owe  the  plaintiff,  and  if  eleven  of  his  neighbors,  called 
compurgators,  would  also  swear  that  they  believed  the  de- 
fendant had  sworn  truly,  the  plaintiff  was  forever  barred. 
This  was  known  as  "  trial  by  wager  of  law."  ^  To  avoid 
this  embarrassing  incident  of  the  action  of  debt,  the  action  of 
assumpsit  was  invented.  The  gist  of  this  action  was,  and  is» 
the  defendant's  promise  ;  it  was  the  distinctive  and  indispen- 
sable averment  of  the  declaration,  for  wantcif  which,  a  demur- 
rer would  be  sustained,  judgment  arrested,  or  reversed  on 
error. ^  The  promise  alleged  in  assumpsit  was  an  express 
promise,  and,  for  a  long  time  after  the  invention  of  assumpsit, 
only  an  express  promise  Avould  support  the  action  ;  so  that, 
the  averment  of  the  declaration  was,  in  this  respect,  in  strict 
accord  with  the  real  transaction  as  shown  by  the  evidence. 

In  the  course  of  time,  there  arose  a  class  of  recognized 
rights  and  obligations  for  which  the  forms  of  action  then  in 

'  1  Chit.  PI.  120  ;  Gould  PL  vi.  -  3  Bl.  Com.  341 ;  Evans  PI.  305 ; 

10,  note  2  ;  Granger  v.  Granger,  6  Pom.  Rem.  512. 

Ohio,  35,  41.  *  1  Chit.  PI.  301 ;  Pom.  Rem.  513. 

9  1  Chit.  PI.  518. 


g96  HISTORY  OF  PLEADING.  84 

use  did  not  furnish  a  remedy ;  and  the  courts,  instead  of  in- 
venting a  new  action  to  meet  this  new  demand,  chose  to 
extend  the  application  of  assumpsit.  As  usual,  they  resorted 
to  fiction  ;  but  instead  of  adapting  the  action,  by  introducing 
a  fictitious  element,  they  actually  adapted  the  operative  facts 
to  be  alleged,  by  adding  thereto  a  false  and  fictitious  feature. 
The  fiction  so  invented  was  that  of  an  implied  promise  to 
pay,  in  those  cases  wherein  the  law  imposes  an  obligation  to 
pay  without  express  promise.  The  addition  of  this  fictitious 
promise  to  the  facts  and  circumstances  to  which,  without  any 
promise,  the  law  attached  the  obligation,  brought  such  cases 
formally  within  the  scope  and  operation  of  assumpsit,  whose 
distinctive  requisite  was  the  defendant's  promise  to  pay. 
This  was  doubtless  the  origin  of  "  implied  contract,"  a  term 
very  inaptly  used  to  designate  an  obligation  that  arises  ex 
lege^  and  not  ex  contractu} 

96.  Assumpsit,  Continued. — The  action  of  assumpsit, 
thus  enlarged  by  the  fiction  of  an  implied  promise,  and  mod- 
ified by  the  introduction  of  the  common  counts,  became  a 
remedy  of  extensive  application.  It  lies  to  recover  money 
lent,  or  paid  for  the  defendant  at  his  request,  or  had  and 
received  by  him  to  the  use  of  the  plaintiff.  It  is  the  proper 
remedy  for  work  done,  or  for  services  rendered,  for  goods 
sold  and  delivered,  for  an  account  stated,  for  breach  of  prom- 
ise to  marry,  to  recover  for  the  sale  or  hire  of  personal  prop- 
erty. It  is  the  proper  action  on  bills  of  exchange,  checks, 
promissor}'-  notes'  policies  of  insurance,  guaranties,  and  war- 
ranties. In  some  cases,  where  tlie  defendant  has,  by  his  tor- 
tious act,  received  tlie  plaintiff's  money  or  propert3%  the 
plaintiff  may  waive  the  tort,  and  sue  in  assumpsit.^  AVhen 
the  action  is  upon  an  express  contract,  it  is  called  sj^ecial 
assumpsit ;  when  upon  an  implied  promise,  it  is  called  general 
assumpsit. 

The  declaration  in  assumpsit  states  the  promise  of  the  de- 
fendant, the  consideration, — except  when  the  action  is  on  a 
negotiable  instrument, — and  the  breach  thereof.     A  promise 

'  Mete,  on  Cont.  5,  203,  204 ;  »  1  Chit.  PI.  99 ;  Heard  PI.  25  ; 
Pom.  Rem.  512.  Steph.  PI.  85. 


35  COMMON-LAW  PROCEDURE.  §97 

must  always  be  alleged,  wlietlier  there  be  in  fact  an  express 
promise,  or  only  cirucinstaiices  from  wliicli  the  law  will  create 
a  liability.^  There  is,  in  common-law  pleading,  no  such  thing 
as  an  implied  promise.  Such  character  of  alleged  promise 
will  appear  only  in  tlie  evidence  ;  and  proof  of  circumstances 
giving  rise  to  an  implied  promise  will  support  the  allegation 
of  an  express  promise.^ 

The  general  issue  in  this  action  is  non  assumsit — he  did 
not  promise.  The  form  of  this  plea  is,  that  the  defendant 
"did  not  undertake  or  promise,  in  manner  and  form  as  the 
plaintiff  hath  complained."  This  denies,  in  terms,  onlj'  tlie 
promise.  Formerly,  a  defendant  was  allowed,  under  this 
plea,  not  only  to  maintain  his  denial  of  a  promise,  but  to 
prove  affirmative  facts,  in  discharge  or  in  excuse.^  But  more 
recentl}^  this  plea  has  been  allowed  to  operate  only  as  a  denial 
in  fact  of  the  express  contract  alleged,  or  of  the  circumstances 
from  which  the  promise  alleged  may  be  implied  by  law ;  *  and 
all  matters  in  discliarge  or  in  excuse  must  be  specially  pleaded.^ 

Judgment  in  assumpsit,  if  for  plaintiff,  is,  that  he  recover 
a  specified  sum  as  damages,  and  his  costs ;  if  for  defendant, 
it  is  tliat  he  recover  costs. 

97.  T]ie  Common  Counts. — There  are  certain  modifica- 
tions of  tlie  action  of  assumpsit,  known  as  the  "  common 
counts."  These  are,  the  indebitatus  assumsit,  the  quan- 
tum meruit,  the  quantum  valebant,  and  the  insimul  com- 
putasset.  A  shorter  and  more  general  form  of  statement 
obtains  in  these  than  in  most  other  actions.  They  were 
brought  into  use,  and  at  first  used  in  connection  with  special 
counts,  to  prevent  the  defeat  of  a  just  claim  by  an  accidental 
variance  between  the  allegations  in  the  special  count  and  the 
evidence  on  the  trial.  But  in  recent  times,  the  joinder  of 
the  common  counts  with  a  special  count  on  the  same  right  of 
action  is  generally  prohibited. 

'  Steph.  PI.  85,  86,  note  1 ;  Gould        2  Gould  PL  iii.  19. 
PI.  iii.  10;  Bliss  PI.  152,  154  ;  Mc-        »  1  Chit.  PI.  476. 
Kelvey's  Com.  Law  PI.  40^3.     Cf.        *  1  Chit.  PI.  513,  742, 
Mass.  Mut,  Life  Ins.  Co.  v.  Kellogg,        '  1  Chit.  PI.  516  ;  Seldon,  J.,  in 

82  111.  614.  McKyriug  v.  Bull,  16  N.  Y.  297. 


§  98  HISTORY  OF  PLEADING.  86 

Indehitatus  assumpsit  is  that  species  of  action  in  which 
the  plaintiff  first  alleges  an  indebtedness  in  a  named  sum, 
stating  briefly  the  subject-matter  of  the  debt,  and  then  alleges 
that  in  consideration  thereof  the  defendant,  being  so  indebted, 
promised  to  pay  the  plaintiff.  This  species  of  action  lies  for 
work  done,  for  materials  furnished,  for  goods  sold  and  de- 
livered, for  use  and  occupation,  etc. 

The  general  issue  in  this  form  of  assumpsit  puts  in  issue 
all  the  facts  essential  to  establish  the  indebtedness  alleged.^ 

Assumpsit  on  a  quantum  meruit  lies  for  work  done  at  the 
request  of  another.  It  differs  from  indebitatus  assumpsit  in 
this,  that  instead  of  alleging  a  promise  to  pay  a  certain  sum 
specified,  the  plaintiff  alleges  first,  the  doing  of  the  work, 
and  then  a  promise  to  pay  as  much  as  he  reasonably  deserved, 
aud  that  for  the  work  he  reasonably  deserves  to  have  a  speci- 
fied sum.  Where  there  is  an  express  contract  for  a  stipulated 
amount  to  be  paid  for  services,  the  plaintiff  can  not  abandon 
the  contract  and  resort  to  this  action  on  an  implied  as- 
sumpsit.2 

98.  The  Common  Counts,  Continued. — The  form  of  ac- 
tion called  assumpsit  on  a  quantum  valebant  lies  for  goods 
sold  without  specifying  any  price.  In  such  case,  the  law 
implies  a  promise  to  pay  as  much  as  the  goods  are  worth ; 
and  in  this  form  of  action  the  plaintiff  alleges  the  promise  of 
the  defendant  to  pay  as  much  as  the  goods  were  reasonably 
worth,  and  then  alleges  that  they  were  worth  a  named  sum. 

Insimul  computasset  is  the  assumpsit  on  an  account 
stated.  An  account  stated  is  the  settlement  of  an  account 
between  parties,  whereby  a  balance  is  ascertained  in  favor  of 
one  of  them.  In  assumpsit  on  an  account  stated,  the  plaint- 
iff alleges  that  the  defendant  accounted  with  him,  and  was 
then  found  to  be  in  arrears  to  plaintiff  a  named  sum,  which 
he  then  promised  to  pay. 

In  all  these  counts  the  implied  promise  is  averred  as  an  ex- 
press promise.  For  example,  in  indebitatus  assumpsit  for 
goods  sold  and  delivered,  the  averment  of  a  promise  is  as 

1  Steph.  PI.  339,  note  f. ;  1  Chit.  «  1  Chit.  PI.  341 ;  2  Bouv.  Die, 
PI.  513,  517,  743.  voce  "  Quantum  Meruit." 


87  COMMON-LAW  PROCEDQRE.  ^09 

follows :  "  That  the  defendant,  on  the  day  of  , 

was  indebted  to  the  plaintiff  in  dollars,  for  goods  then 

sold  and  delivered  by  plaintiff  to  defendant  at  his  special  in- 
stance and  request ;  and  being  so  indebted,  the  defendant, 
in  consideration  thereof,  then  promised  to  pay  the  said  sum 
of  money  to  the  plaintiff,  upon  request."  ^ 

The  common  counts  are  also  sometimes  used  in  the  action 
of  debt;  omitting,  of  course,  the  allegation  of  a  promise. 
Thus,  for  goods  sold,  an  indebitatus  count  in  debt  would 
allege  that  on  a  certain  day  the  defendant  was  indebted  to 
plaintiff  in  a  certain  sum,  for  divers  goods,  wares,  and  mer- 
chandise, by  the  plaintiff  before  that  time  sold  and  delivered 
to  the  defendant  at  his  special  instance  and  request,  to  be 
paid  when  requested ;  and  that,  although  often  requested,  he 
has  not  paid  the  same,  or  any  part  thereof,  to  the  damage 
of  plaintiff  dollars.^  ,' 

99.  The  Action  of  Detinue. — This  action  lies  for  the 
specific  recovery  of  goods  and  chattels,  or  deeds  and  writings, 
wrongfully  detained.  It  is  the  only  action  for  recovery  of 
personal  chattels  in  specie,  except  replevin,  which  gives 
specific  recovery  of  goods  taken.  To  support  this  action, 
three  conditions  are  requisite.  (1)  The  goods  sought  to  be 
recovered  must  be  distinguishable  from  all  others,  so  that  if 
the  plaintiff  obtain  judgment,  the  sheriff  may  be  able  to  de- 
liver the  particular  goods  to  him.  (2)  The  plaintiff  must 
have  a  right  to  immediate  possession  of  the  property.  A  re- 
versioner can  not,  therefore,  maintain  the  action  ;  though  a 
bailee,  having  only  a  special  property,  may  maintain  it.  (3) 
The  defendant  must  have  the  actual  possession,  and  must 
have  acquired  it  by  lawful  means, — as,  by  delivery,  bailment, 
or  finding, — and  not  tortiously. 

Detinue  is  peculiar  in. its  nature,  and  not  clearly  referable 
to  either  class  of  actions.  The  right  to  join  detinue  with 
debt,  and  to  sue  in  detinue  for  goods  detained  by  a  bailee, 
together  with  the  history  of  the  action,  showing  that  it  was 
originally  an  action  of  debt  in  the  detinet,  would  seem  to 
place  it  with  actions  ex  contractu.     On  the  other  hand,  as 

>  2  Chit.  PI.  37,  55  ;  Steph.  PL  120.        «  2  Chit.  PL  385  ;  Steph.  PL  115. 


g  100  HISTORY  OF  PLEADING.  -.,^ 

detinue  lies  for  wrongful  detention,  without  reference  to  any 
contract ;  and  as  the  wrongful  detainer  is  the  gist  of  the 
action,  some  writers,  regarding  it  as  founded  on  tort,  have 
classed  it  with  actions  ex  delicto.^ 

The « general  issue  in  this  action  is  non  detinet,  and  is  in 
form  as  follows  :  "  And  tlie  said  defendant  says,  that  he 
does  not  detain  the  said  goods  and  chattels  in  the  said  dec- 
laration specified,  or  any  part  thereof,  in  manner  and  form 
as  the  said  plaintiff  hath  above  complained.  And  of  this  the 
said  defendant  puts  himself  upon  the  country."  The  plea 
of  non  detinet  denies  only  the  alleged  detention ;  if  the  de- 
fendant wishes  to  deny  the  plaintiff's  property  in  the  goods, 
or  if  he  relies  upon  a  justifiable  detainer,  he  must  plead 
specially. 

The  judgment  in  detinue,  if  for  the  plaintiff,  is  always  in 
the  alternative — that  he  recover  the  goods,  or  the  value  there- 
of if  he  can  not  have  the  goods,  with  damages  for  the  deten- 
tion, and  his  costs.'*^ 

III.  ACTIONS  IN   FORM   EX  DELICTO. 

100.  The  Action  of  Trespass. — Civil  injuries  not  con- 
nected with  contract  are  of  two  kinds :  the  one,  direct,  and 
coupled  with  force  and  violence ;  as,  assault  and  battery, 
false  imprisonment ;  the  other,  consequential,  and  without 
force  and  violence  ;  as,  slander,  malicious  prosecution.  The 
term  trespass,  in  its  technical  signification,  means  an  injury 
committed  with  force,  or  as  it  is  generally  stated,  vi  et  armis. 
The  action  of  trespass  lies  only  for  injuries  committed  with 
force,  and  generally  for  only  such  as  are  immediate,  and  not 
consequential.^ 

Force  is  either  actual  or  implied.  If  one  unlawfully  and 
with  force  break  down  the  gate  and  enter  the  close  of  another, 
the  force  is  actual,  and  the  act  is  a  trespass.  If  one  unlaw- 
fully, but  peaceably,  enter  the  close  of  another,  force  is  im- 
plied, for  there  is  a  breaking  of  the  ideal  inclosure  which 
encircles  every  man's  possessions,  when  he  is  owner  of  the 

>  1  Chit.  PL  98,  note,  121,  note.  ^  j  chit.  PI.  127,  166. 

9  1  Chit.  PI.  125. 


89  COMMON-LAW  PROCEDURE.  g  101 

surface.  In  either  case,  the  injury  ensuing  is  remediable  by 
ah  action  of  trespass  quare  clausum  f regit. 

Trespass  is  the  jiroper  remedy  for  assault  and  batter}^  for 
false  imprisonment,  and  for  beating,  wounding,  or  imprison- 
ing a  wife  or  servant,  whereby  the  husband  or  master  sustains 
loss  of  service.  It  lies  for  criminal  conversation,  and  for 
debauching  a  daughter ;  force  being  implied  in  these  cases. 
It  is  the  proper  remedy  for  injuries  to  personal  property,  com- 
mitted by  unlawfully  striking,  chasing — if  alive,  or  carrying 
away,  a  j^ersonal  chattel  of  which  another  is  the  general  or 
qualified  owner  and  is  in  possession,  actual  or  constructive ; 
but  a  naked  possession,  or  right  to  immediate  possession,  is 
a  sufficient  title  to  support  the  action. 

Trespass  is  also  the  proper  remedy  for  the  several  acts  of 
breaking  and  entering  the  close  of  another,  and  causing 
damage  thereto.  The  thing  injured  must  be  something 
tangible  and  fixed,  such  as  land,  a  house,  or  other  building. 
It  is  not  necessary  that  the  close  be  fenced  from  the  property 
of  others,  the  term  "  close  "  being  technical,  and  signifying 
the  interest  in  the  land,  and  not  merely  an  inclosure.  There 
must  be  some  injury  to  authorize  a  recovery ;  but  the  slight- 
est injury,  as  treading  down  the  grass,  is  sufficient.^ 

101.  Trespass,  Continued. — The  gist  of  this  form  of  the 
action  (for  breaking  and  entering)  is  the  injury  to  the  posses- 
sion ;  and  the  general  rule  is,  that  unless  the  plaintiff  was  in 
actual  possession  at  the  time  the  injury  was  committed,  he 
can  not  support  trespass.  Therefore,  a  landlord  can  not, 
during  a  subsisting  lease,  support  trespass  for  an  injury  to 
the  land,  but  the  action  must  be  in  the  name  of  the  tenant 
in  possession.^  There  is  a  material  distinction  in  this  action 
between  personal  and  real  property.  As  to  the  former,  the 
general  property  draws  it  to  the  possession  so  as  to  enable 
the  owner  to  maintain  trespass,  although  he  never  had  actual 
possession ;  but  as  to  the  latter,  there  is  no  such  constructive 

'  In  some  of  the  states  it  is  pro-  ion  an  action  of  trespass  will  not 

vided  by  statute  that  trespass,  in-  determine  a  dispute  as  to  title,  even 

stead  of  ejectment,  may  be  main-  though  the  issue  in  the  case  be  as 

tained  to  try  title  to  real  estate,  to  title.     6  Wait's  Ac.  and  Def.  90, 

But  without  such  statutory  provis-  ^  1  Chit.  PI.  175. 


§  102  HISTORY  OF  PLEADING.  90 

possession,  and  unless  the  plaintiff  had  the  actual  possession, 
by  himself  or  his  servant,  when  the  injury  was  committed,  he 
can  not  support  this  action.^ 

102.  Trespass,  Continued. — The  declaration  in  this  ac- 
tion states  the  injury  to  the  person,  or  to  the  property,  and 
alleges  that  it  was  committed  vi  et  armis  and  contra  pacem. 
For  example,  in  trespass  for  assault  and  battery,  the  allega- 
tions are,  "  that  the  defendant,  on  the  day  of  , 
with  foi'ce  and  arms,  made  an  assault  upon  the  plaintiff,  and 
beat,  wounded,  and  ill-treated  him,  so  that  his  life  was  de- 
spaired of,  and  other  wrongs  to  the  plaintiff  did,  against 
the  peace  of  our  said  lord,  the  king,  and  to  the  damage  of 
plaintiff  pounds.''  And  in  trespass  quare  clausum 
'I'vegit.,  the  allegations  are,  "  that  the  defendant,  on  etc.,  with 
force  and  arms,  broke  and  entered  the  close  of  plaintiff,  that 
is  to  say,  (describing  the  close),  and  with  his  feet,  in  walking, 
trod  down,  trampled  upon,  consumed  and  spoiled  the  grass 
and  herbage  of  the  said  plaintiff  then  and  there  growing,  and 
other  wrongs  to  the  plaintiff  then  and  there  did,  against  the 
peace  "  etc. 

The  general  issue  in  trespass  is  non  culpahilis — not  guilty, 
and  is  in  the  form  following :  "  And  the  said  defendant  says 
that  he  is  not  guilty  of  the  said  supposed  trespasses  above 
laid  to  his  charge,  or  any  part  thereof,  in  manner  and  form 
as  the  said  plaintiff  hath  above  complained.     And  of  this  the 

'  1  Chit.  PL  176.     The  plaintiff's  supposes  that  no  man  wiU  tamely 

possession  is  inseparable  from  that  permit  a  direct  interference  in  his 

character    of    the    injury    which  concerns,   and    therefore    tliat  no 

makes  it  redressible  by  this  action,  man  will  attempt  sucli  direct  inter- 

and  which  is  expressed  by  the  dis-  ference,  unless  he  is  prepared  with 

tinguishing  phrase,  "viet  armis."  a  force  to  support  his  intrusion. 

Mr.  Evans,  in  distinguishing  tres-  This  interference,  it  will  be  seen, 

pass  from  ca.se,  says:  "The  real  arises  out  of  the  notion  that  the 

distinction  is  in  the  thing  signified  plaintiff  will  resent  the  attack  upon 

by  this  phrase.     The  thing  signified  himself  or  his  property.     We  are, 

is  a  technical  or  imaginary  force,  therefore,  to  look  at  the  condition 

inferred  by  the  law  from  every  di-  of  the  plaintiff,  not  of  the  defend- 

rect  unlawful  intermeddling  with  ant,  to  ascertain  ivhether  the  law 

the  person  or  property  of  another,  will  impute  force  to  the  defendant ^ 

The  distinction  is  in  the  intermed-  Evans  PI.  67. 
dling  being    direct ;    for  the  law 


91  COMMON-LAW  PROCEDURE.  §  103 

said  defendant  puts  himself  upon  the  country."  This  plea 
is  only  a  denial  of  tlie  trespass  alleged.  In  trespass  quare 
clausum  fregit^  it  does  not  deny  the  plaintiff's  possession 
or  right  of  possession.  In  trespass  de  bonis  asportatis,  it 
does  not  deny  the  plaintiff's  property  in  the  goods.  To  put 
these  matters  in  issue,  they  must  be  traversed  specially ;  and 
any  matter  in  excuse  or  justification  must  be  specially 
pleaded.^  In  trespass  to  the  person,  the  defendant  may  jus- 
tify under  the  plea  of  son  assault  demesne — that  .the  plaint- 
iff made  the  first  assault ;  or  under  the  plea  of  moliter  manus 
imposuit — that  to  preserve  the  peace,  he  gently  laid  his 
hands  upon  the  plaintiff. 

Judgment  for  plaintiff  in  trespass  is  for  damages  and 
costs.  The  effect  of  such  judgment  for  the  value  of  personal 
property  tortiously  taken  is,  to  transfer  the  title  thereto  to 
the  defendant.^ 

103.  Trespass  on  the  Case. — This  action,  sometimes 
called  an  "  action  on  the  case,"  and  sometimes  only  "  case," 
was  invented  to  furnish  redress  for  numerous  wrongs  not 
remediable  by  the  established  forms  of  action  at  that  time  in 
use.  When  all  civil  actions  in  the  Superior  Courts  of  com- 
mon law  were  required  to  be  commenced  by  original  writ, 
these  original  writs  differed  from  one  another  in  form  and 
tenor,  each  form  of  writ  corresponding  to  the  form  of  action 
to  which  it  was  exclusively  appropriate,  and  to  which  it  had 
probably  given  name.  These  established  forms  of  writs  were 
collected  into  a  book,  called  Registrum  Brevhan,  or  Regis- 
ter of  Writs  ;  and  the  remedies  afforded  were  limited  to 
cases  to  which  some  one  of  these  writs  and  its  corresponding 
form  of  action  were  applicable.  In  the  progress  of  society, 
cases  of  injury  arose  that  were  novel  in  their  circumstances, 
and  that  were  not  within  the  scope  of  any  of  the  actions  then 
in  use,  though  they  came  within  the  recognized  principles  of 
the  substantive  law.  To  supply  this  deficiency,  the  clerks 
of  chancery  were  empowered,  by  act  of  parliament,  grounded 
upon  the  maxim  ubi  jus,  ibi  remedium,^  to  frame  new  writs 

1 1  Chit.  PI.  520,  744 ;  Steph,  PI.        '  Acheson  v.  MiUer,  2  O.  S.  203. 
235.  3  Br.  Max.  192. 


K 


gl04  HISTORY  OF  PLE;:*  DING.  92 

in  consimili  casu  with  those  ah-eady  known.  Under  this 
power  they  constructed  many  writs  for  different  injuries  sup- 
posed to  bear  analogy  to  trespass  ;  and  from  this  supposed 
analogy,  and  from  the  fact  that  these  new  writs  were  founded 
upon  the  peculiar  circumstances  of  the  particular  case,  they 
were  distinguished  from  the  old  writs  of  trespass,  by  the  ap- 
pellation of  "  writs  of  trespass  on  the  case."  These  new 
writs,  though  invented  pro  re  nata  and  in  various  forms, 
differing  according  to  the  natures  of  the  particular  cases  that 
called  them  forth,  came  to  be  regarded  as  constituting  col- 
lectively a  new  and  distinct  form  of  action,  to  which  was 
given  the  generic  name  of  "  trespass  on  the  case."  ^ 

104.  Trespass  on  the  Case,  Continued. — This  action 
lies  generally  to  recover  damages  for  torts  committed  without 
force,  actual  or  implied ;  or,  if  occasioned  by  force,  where  the 
matter  affected  is  not  tangible,  or  the  injury  is  only  conse- 
quential ;  or  where  the  interest  in  the  property  injured  is 
only  in  reversion.  It  is  the  proper  remedy  for  a  landlord, 
where  the  injury  affects  his  reversionary  interest  ;2  for  put- 
ting a  spout  so  near  the  plaintiff's  land  as  to  run  the  water 
upon  it ;  ^  for  obstructing  a  private  w^j  ;  for  special  damages 
arising  from  a  public  nuisance  ;  and  for  damage  resulting 
from  want  of  skill  or  care  on  the  part  of  a  surgeon,  or  from 
neglect  or  misfeasance  of  an  attorney ;  though  in  such  action 
against  a  surgeon  or  an  attorney  it  is  said  that  assumpsit  will 
lie.*  Case  will  lie  for  criminal  conversation,  and  for  de- 
baunching  a  daughter ;  though  it  is  the  better  practice,  and 
the  more  usual,  to  declare  in  trespass.  It  lies  for  libel,  for 
slander,  for  malicious  prosecution,  for  disturbing  one  in  the 
enjoyment  of  an  easement,  or  of  a  franchise.^ 

1  Steph.  PI.  64,  83.     The  action  of  writ  of  trespass  on  the  case,  accord- 

assumpsit,in  form  eareo/ifracfu,  and  ing  to  its  primitive  institution  by 

the  action  of  trover,  in  form  ex  King  Edward  tlie  First,  to  almost 

delicto,  are  said  to  have  originated  every  instance  of  injustice  not  rem- 

as  species  of  this  new  genus.  1  Chit,  edied  by  any  other  process."    4  Bl. 

PI.  i;;2 ;  Steph.  PI.  85.     Blackstone  Com.  ^2. 

thought  that  one  of  the  most  im-  2  \  chit.  PI.  175. 

portant  amendments  of  the    law  '  Wood  on  Nuisances,  101. 

was    that  of   "  extending  the  re-  *  1  Chit.  PI.  134. 

medial  influence  of  the  equitable  ^  1  Chit.  PI.  134,  142. 


93  COMMON-LAW  PROCEDURE.  §105 

If  a  log  be  wrongfully  thrown  npon  a  man's  foot,  witli 
however  little  violence,  the  remedy  would  be  trespass,  foj- 
the  injury  would  be  tlie  immediate  result  of  actual  force  ; 
but  if  a  log  be  wrongfully  thrown  into  the  highway,  with 
whatever  violence,  and  a  man  fall  over  it,  the  remedy  would 
be  case,  for  the  injury  would  be  consequential.^  In  some 
cases,  though  the  injury  be  forcible  and  immediate,  the 
plaintiff  may  waive  the  trespass,  and  sue  in  case  or  in  trover.^ 

The  general  issue  in  trespass  on  the  case  is  not  guilty. 
Formerly  this  plea  admitted  proof  of  facts  in  justification,  in 
excuse,  or  in  discharge  ;  but  more  recently,  it  is  made  to  op- 
erate only  as  a  denial  of  the  breach  of  duty,  or  wrongful  act 
alleged  to  have  been  committed  by  the  defendant.  Judg- 
ment for  plaintiff  is  for  damages  and  costs. 

105.  The  Action  of  Trover. — The  word  trover  means  to 
find.  The  action  of  trover,  or  "trover  and  conversion,''  as  it 
is  sometimes  called,  was  originally  a  species  of  trespass  on 
the  case  for  the  recover}''  of  damages  against  one  who  had 
found  another's  goods,  and  who  refused  to  deliver  them  on 
demand  to  the  owner,  but  converted  them  to  his  own  use. 
But  at  length  the  finding  came  to  be  treated  as  a  mere  fiction 
of  law,  and  the  action  was  permitted  to  be  brought  against 
any  one  who,  having  possession,  by  any  means,  of  the  per- 
sonal property  of  another,  sold  or  used  the  same  without  the 
consent  of  the  owner,  or  refused  to  deliver  it  when  demanded. 
In  form,  this  action  is  a  fiction  ;  in  substance,  it  is  to  recover 
the  value  of  personal  property  wrongfully  converted.  Tlie 
gist  of  the  action  is  the  conversion  ;  this  is  the  tort,  or  male- 
ficium.  While  the  form  of  the  action  supposes  the  defendant 
may  have  come  lawfully  into  possession,  it  is  immaterial 
whether  in  fact  he  acquired  the  possession  rightfully  or 
wrongfully,  for  the  wrong  is  predicated  of  the  conversion,  and 
not  of  the  takingf.^ 

Three  things  are  requisite  for  the  support  of  this  action. 
(1)  The  proj)erty  affected  must  be  a  personal  chattel,  and 
the  plaintiff's  right    must  be    to   some  identical  or  specific 

1  1  Cliit.  PL  126.  » 1  Chit.  PI.  146. 

« 1  Chit.  PI.  139. 


§  106  HISTORY  OF  PLEADING.  94 

goods.  (2)  The  plaintiff  must,  at  the  time  of  the  conversion, 
have  had  a  property,  general  or  special,  in  the  chattel ;  and 
he  must  have  either  actual  possession,  or  the  right  to  im- 
mediate possession.  (3)  There  must  have  been  a  conver- 
sion of  the  property.  The  tortious  asportation  of  property  is, 
of  itself,  a  conversion  ;  but  when  the  original  taking  was  law- 
ful, and  there  has  not  been  an  actual  conversion,  there  must 
be  a  demand  of  the  property  and  a  wrongful  refusal  to  deliver, 
before  the  conversion  is  complete.^  For  a  wrongful  taking 
of  goods,  trover  is,  in  general,  a  concurrent  remedy  with 
trespass  ;  but  where  the  taking  is  lawful  or  excusable,  trover 
alone  will  lie. 

The  declaration  in  this  action  states  that  the  plaintiff  was 
possessed,  as  of  his  own  property,  of  certain  goods  and  chat- 
tels, describing  them  ;  that  he  casually  lost  them  out  of  his 
possession  ;  that  they  came  to  the  possession  of  the  defend- 
ant by  finding ;  that  he,  well  knowing  the  said  goods  and 
chattels  to  be  the  property  of  plaintiff,  and  contriving  and 
fraudulently  intending  to  defraud  plaintiff,  converted  them 
to  his  own  use. 

The  general  issue  is  not  guilty^  which  denies  only  the  con- 
"version,  and  not  the  plaintiff's  title.  The  measure  of  tlie  re- 
covery in  trover  is  in  general  the  value  of  the  goods  when 
converted,  with  interest ;  and  judgment  for  the  value  of  prop- 
erty converted,  in  trover,  as  for  property  carried  away,  in 
trespass,  transfers  the  title  to  the  property  to  the  defendant ;  ^ 
though  in  some  jurisdictions  it  is  held  that  title  does  not  pass 
until  satisfaction  of  the  judgment. 

105.  The  Action  of  Replevin. — This  is  an  action  for 
specific  recovery  of  personal  property  unlawfully  taken  and 
detained  from  one  rightfully  in  possession  thereof.  It  is 
jDrobable  that  this  action  was  originally  limited  to  one  in- 
stance of  unlawful  taking — that  of  wrongful  distress,  either 
of  cattle  damage  feasant,  or  of  chattels  for  rent  in  arrear.^ 
However  this  may  be,  it  was  early  extended  to  all  cases  of  a 
tortious  taking. 

'  1  Chit.  PL  146-154  ;  Mayne  on    Miller,  3  O.  S.  203 ;  2  Kent  Com. 
Dam.  497,  n.  387  ;  6  Wait's  Ac.  and  Def,  224. 

"  1  Chit  PI.  161 ,  n.  2  ;  Acheson  v.        =*  3  Bl.  Com,  145  ;  1  Chit.  PL  164» 


95  COMMON-LAW  PROCEDURE.  §  107 

To  support  replevin,  the  property  affected  must  be  a  per- 
sonal chattel ;  the  plaintiff  must,  at  the  time  of  the  taking, 
have  had  the  right  of  immediate  possession,  either  as  the 
general  owner,  or  as  owner  of  a  special  property  therein ; 
and  the  property  must  be  susceptible  of  identification  and  of 
distinguishment  from  other  like  property .^  Replevin  is,  in 
form,  an  action  for  damages  for  the  unlawful  taking  and  de 
taining  of  the  goods  ;  and  while  a  judgment  for  damages  is 
the  only  relief  prayed  for,  the  real  object  of  the  action  is  the 
recovery  of  the  specific  property.'-^  This  remedy,  at  common 
law,  is  called  replevin  in  the  cepit.,  because  it  lies  only  where 
there  has  been  a  tortious  taking  ;  bat  where,  as  in  the  United 
States  generally,  the  remedy  has  been  enlarged  by  statute  so 
as  to  make  it  apply  to  cases  where  only  the  detention  is 
wrongful,  it  is  called  replevin  in  the  detinet.  Replevin  is 
not  commenced  in  any  of  the  Superior  Courts  of  common  law, 
though  sometimes  removed  to  them  from  an  inferior  jurisdic- 
tion. 

107.  Replevin,  Continued. — The  declaration  in  replevin 
alleges  the  taking  of  plaintiff's  property  by  the  defendant,  at 
a  certain  place  named,  and  his  detention  of  it,  to  the  damage 
of  plaintiff. 

The  general  issue  in  replevin  in  the  cep'it  is  non  cepit — 
"that  he  did  not  take  the  property,  or  any  of  it,  in  manner 
and  form  as  above  complained."  This  plea  admits  the 
plaintiff's  property  and  his  riglit  of  possession,  and  puts  in 
issue  only  the  taking  and  the  place  of  taking  as  alleged.^  If 
the  action  is  in  the  detinet,  the  defendant  may  plead  non 
detinet,  which  denies  only  the  detention ;  though  it  is  some- 
times given  a  wider  operation.  Tlie  defendant  may  justify 
the  taking,  by  way  of  avowry,  which  is  an  assertion  of  rightr 
f  ul  taking,  as  for  arrears  of  rent,  damage  feasant,  or  the  like  \ 
or  by  way  of  recognizance,  which  is  the  assertion  of  taking 
by  the  command  of  another,  who  had  a  right  to  restrain. 
These  counter  allegations  in  replevin,  and  whicli  are  analo- 
gous to  pleas   in  bar  by  way  of  confession  and  avoidance, 

»  3  Bl.  Com.  145 ;  1  Chit.  PL  162.        =>  1  Chit.  PI.  499. 
*  Steph.  PI.  92. 


§  108  HISTORY  OF  PLEADING.  96 

place  the  defendant  in  the  attitude  of  a  plaintiff,  and  both 
parties  are  said  to  be  actors.^ 

Judgment  for  the  plaintiff  in  replevin  is  for  damages  for 
the  taking  and  detention  only,  or  for  tlie  value  of  the  prop- 
erty in  addition  thereto.  If,  upon  the  writ  issued,  the  sheriff 
has  found  the  property  and  delivered  it  to  the  plaintiff,  the 
declaration  is  then  in  the  detinuit,—t\va,t  is,  the  plaintiff  de- 
clares that  the  defendant  took  the  property  and  detained  it 
until  replevied  by  the  sheriff ;  and  the  judgment  is  for  the 
taking  and  detention  only.  But  if  the  sheriff  has  not  found 
the  property,  and  has  so  returned  his  writ,  the  declaration  is 
in  the  detinet, — that  is,  it  alleges  that  the  defendant  took 
the  goods  and  still  detains  them  ;  and  the  judgment  is  for 
the  detention  and  for  the  value  of  the  goods.  If  the  goods 
have  been  delivered  to  the  plaintiff,  and  judgment  is  for  the 
defendant,  it  is  for  costs,  and  for  a  return  of  the  goods — pro 
retorno  habendo.  If  the  goods  remain  in  the  defendant's 
possession,  his  judgment  is  only  for  costs.^ 

IV.   A   GENERAL  VIEW  OF  PERSONAL  ACTIONS. 

108.  CoTenant  and  Debt  the  Earliest  Forms. — In  very 
early  times  comparatively  few  obligations  were  enforced  by 
the  courts.  The  majority  of  the  people  were  ignorant  of  the 
:artof  writing,  and  their  written  contracts  could  be  authenti- 
cated only  by  their  seals,  which  were  generally  impressions 
made  upon  wax.  In  judicial  proceedings,  it  was  regarded  as 
unsafe  to  trust  to  the  memories  of  illiterate  persons  for  the 
particulars  of  contracts,  with  the  single  exception  of  a  con- 
tract for  the  payment  of  a  liquidated  and  certain  sum  of 
money.  With  such  contract  it  was  thought  the  memory  of 
a  witness  might  be  trusted,  provided  the  claimant  was  able 
to  show  a  consideration  for  the  debt.  For  these  reasons, 
contracts  under  seal,  and  those  for  the  payment  of  a  sum 
certain,  were  the  only  contracts  which  the  law  enforced  ;  and 
it  is  therefore  probable  that  the  actions  of  debt  and  of  cove- 
nant— the  one  based  upon  the  essential  nature  of  the  obliga- 

1 1  Add.  on  Torts,  765  ;  Steph.  PL  "^  1  Chit.  PI.  165  ;  5  Wait's  Ac. 
(Troubat's  Ed.)  2d  App.,  note  2.  and  Def.  456. 


97  COMMON-LAW  PROCEDURE.  §§109-110 

tion,  and  the  other  having  regard  only  to  the  form  of  the 
obligation — covered,  originally,  all  the  breaches  of  contracts 
remediable  by  law.^ 

Covenant  is  still  limited  to  the  enforcement  of  contracts 
under  seal.  It  occupies  no  ground  in  common  with  any 
other  form  of  action,  except  the  action  of  debt.  Where  one 
has  bound  himself  by  an  obligation  under  seal  to  pay  to 
another  a  liquidated  sum  of  money,  the  obligee  may  elect 
between  debt  and  covenant  to  enforce  payment.^  Debt,  how- 
ever, occupies  very  little  exclusive  ground.  When  an  obli- 
gation to  pay  a  sum  certain  is  evidenced  by  an  instrument 
under  seal,  this  action  is,  as  has  been  stated,  concurrent  with 
covenant ;  when  evidenced  by  writing  not  under  seal,  or 
when  not  evidenced  by  writing,  it  is  generally  concurrent 
with  assumpsit.  So  that  the  action  of  debt  is  almost  always 
an  elective  remedy.  ^ 

109.  Assumpsit,  Delbt,  Covenant. — Assumpsit  and  cove- 
nant are  each  the  precise  counterpart  of  the  other.  Each  lies 
for  a  breach  of  contract,  but  the  one  lies  always  upon  a  breach 
of  contract  iiot  under  seal,  and  never  upon  a  contract  under 
seal  ;  while  the  otlier  lies  always  upon  a  contract  under  seal, 
and  never  upon  one  not  under  seal.  They  have  no  ground  in 
common,  and  in  no  case  can  there  be  an  election  between 
them.^  But  each  of  these  actions  occupies  common  ground 
with  debt.  On  a  contract  under  seal,  if  to  pay  a  sum  certain, 
debt  or  covenant  will  lie  ;  if  to  do  something  other  than  to 
pay  a  sum  certain,  only  covenant  will  lie.  On  a  con- 
tract not  under  seal,  if  to  pay  a  sum  certain,  debt  or  assumpsit 
will  lie  ;  if  to  do  something  other  than  to  pay  a  sum  certain, 
assumpsit  and  not  debt — unless   in    the  detinet — will  lie. 

110.  Trespass,  Trover,  Detinue. — Where  there  has  been 
an  unlawful  taking  of  the  personal  property  of  one  in  actual 
possession,  or  having  the  right  to  immediate  possession,  the 
injured  party  has,  in  general,  a  choice  of  remedies,  and  may 
sue  in  trespas.^  or  in  trover.  In  such  case  the  wrongful  tak- 
ing and  cari-ying  away  is  a  trespass,  for  which  an  action   of 

'  Evans  PI.  72.  3  Evans  PI.  74. 

«  Evans  PI.  72.  *  Evans  PI.  77. 

7 


§g  111-112  HISTORY  OF  PLEADING.  98 

trespass  vi  et  armis  de  bonis  asportatis  will  lie ;  and  sucli 
tortious  asportation  is,  of  itself,  a  conversion  of  the  prop- 
erty, for  which  trover  will  lie.^  But  while  trover  andy 
trespass  are,  in  general,  concurrent  remedies  for  a  wrongful 
taking  of  goods,  they  are  not  concurrent  remedies  where  the 
taking  is  lawful  or  excusable.  In  such  case,  trespass  can  not 
be  supported,  because  the  tortious  act  complained  of  is  not 
committed  with  force,  actual  or  implied.^  If  the  goods  so 
taken  are  in  the  actual  possession  of  the  defendant,  and  are  dis- 
tinguishable from  all  others,  the  plaintiff  may  bring  detinue, 
for  tlie  specific  recovery  of  the  goods  detained ;  if  the  goods 
have  been  converted,  he  may  bring  trover  for  their  value.^ 
y^  111.  Election  Between  Tort  and  Contract. — Where  per- 
lonal  property  has  been  tortiously  converted,  the  owner  may 
due  in  an  action  ex  delicto^  or  he  may  waive  the  tort,  and  sue 
in  assumpsit.  The  right  to  do  this  rests  upon  two  grounds. 
One  ground  is  the  fiction  of  an  implied  promise  on  the  part 
of  the  wrong-doer  to  pay  for  the  property  so  converted.  The 
other  ground  is  in  the  nature  of  estoppel.  The  defendant  will 
not  be  allowed  to  deny  the  promise  alleged,  by  asserting  his 
own  wrong.  If  the  wrong-doer  has  sold  or  disposed  of  the 
property,  he  may  be  sued  in  assumpsit  as  for  money  had  and 
received  ;  if  he  remains  in  possession  of  it,  he  may  be  sued  as 
for  goods  sold  and  delivered.* 

112.  Consequences  of  Mistake  in  the  Form  of  Action. — 
The  courts  have  been  careful  to  preserve  the  boundaries  of  the 
different  actions ;  and  the  consequences  of  adopting  a  form 
of  action  not  applicable  to  the  particular  case  are  always  prej- 
udicial, and  sometimes  irremediable.  If  the  objection  appear 
upon  the  face  of  the  declaration,  advantage  may  be  taken  of 
it  by  demurrer,  by  motion  in  arrest  of  judgment,  or  by  writ  of 
«rror.  If  the  objection  may  be  made  to  appear  onlj'-  by  proof 
of  extrinsic  facts,  advantage  may  be  taken  of  it  upon   the 

trial,  by  nonsuit  for  the  variance. 

I 

'  1  Chit.  PI.  146,  153,  161,  171.  Bliss   PI.    154  ;    Pom.    Rem.    568  : 

«  1  Chit.  PI.  161.  Steph.  PI.  53-55  ;  Terry  v.  Hunger, 

3 1  Chit.  PI.  172.  121  N.  Y.  162. 
^1    Wait's    Ac.   and    Def.   405; 


99  COMMON-LAW  PROCEDURE.  §113 

If  by  either  of  these  means  the  plaintiff  fail  in  his  action, 
and  judgment  be  given  against  him  for  that  reason,  and  not 
upon  the  merits,  he  may  bring  a  new  action,  and  the  judg- 
ment in  the  ineffectual  suit  will  not  be  a  bar  to  the  second 
action.  But  if  in  such  mistaken  action  the  defendant  plead, 
and  the  plaintiff  take  issue,  and  a  verdict  be  found  for  the 
defendant  upon  the  merits,  the  plaintiff  will  be  estopped 
from  bringing  a  new  action,  provided  such  verdict  be  especi- 
ally pleaded  as  an  estoppel.^ 

V.  ADDITIONAL    REMEDIAL    FORMS. 

113.  Extraordinary  Remedies. — In  addition  to  the 
several  remedial  instruments  of  justice  denominated  "  forms 
of  action,"  there  are  at  common  law  certain  proceedings 
whereby  the  extraordinary  powers  of  the  government  are 
called  to  the  aid  of  a  party.  Among  these  are,  habeas  corpus 
mandamus,  quo  warranto,  and  prohibition. 

The  writ  of  habeas  corpus  is  an  order  issued  by  a  court  or 
judge,  directed  to  a  person  having  another  in  custody,  and 
commanding  him  to  produce  such  person,  at  a  time  and  place 
named,  and  then  and  there  to  show  the  cause  for  his  caption 
and  detention,  and  to  receive  and  do  whatsoever  such  court 
or  judge  shall  then  and  there  consider  and  order  in  that 
behalf.  This  writ  is  usually  prosecuted  by  a  person  claiming 
to  be  unlawfully  restrained  of  his  liberty ;  and  upon  a  hear- 
ing he  is  to  be  discharged,  admitted  to  bail,  or  remanded. 
In  some  jurisdictions  this  writ  may  be  issued  at  the  instance 
of  one  claiming  to  be  entitled  to  the  custody  of  another,  of 
which  custody  he  is  unlawfully  deprived. 

The  writ  of  mandamus  is  a  command  issuing  in  the  name 
of  the  sovereign,  from  a  court  of  law,  directed  to  some  officer, 
corporation,  or  inferior  tribunal,  requiring  the  performance 
of  a  particular  duty  specified  in  the  writ,  and  arising  from  an 
office,  trust,  or  station,  or  from  operation  of  law.  It  was 
originally  a  high  prerogative  writ,  but  in  this  country  it  is 
regarded  much  in  the  nature  of  an  action  by  the  person  on 
whose  relation  it  is  granted  for  the  enforcement  of  a  riolit  in 

'  1  Chit.  PI.  197. 


,^li4  HISTORY  OF  PLEADING.  IQO 

exti'aordinarj  cases  wherein  there  is  no  adequate  remedy  by 
the  ordinary  modes  of  procedure. 

The  writ  of  quo  warranto  was  a  high  prerogative  writ,  is- 
sued in  the  name  of  the  government,  against  one  who  usurped 
any  office  or  franchise,  requiring  him  to  appear  before  the 
court  issuing  the  writ,  and  to  show  by  what  warrant  he 
claimed  the  office  or  francliise.  This  ancient  writ  has  been 
superseded  by  the  more  modern  remedy  of  an  information  in 
the  nature  of  a  quo  warranto^  which,  w^hile  in  some  of 
its  forms  and  incidents  it  partakes  of  the  nature  of  a  criminal 
proceeding,  is,  in  substance,  a  strictly  civil  proceeding,  to  try 
the  title  to  an  office  or  franchise,  and  to  oust  one  wiongfully 
in  possession  thereof. 

The  writ  of  prohibition  is  an  extraordinary  judicial  writ 
issued  by  a  superior  court,  and  directed  to  an  inferior  court, 
commanding  it  to  cease  from  the  exercise  of  jurisdiction  in  a 
specified  suit.  Its  object  is  to  restrain  a  subordinate  judicial 
tribunal  from  usurping  a  jurisdiction  with  which  it  is  not  le- 
gally vested,  and  to  save  a  party  from  the  annoyance  of  being 
required  to  answer  in  a  proceeding  that  is  coram  non  judice. 
It  is  the  opposite  of  mandamus ;  and  it  differs  from  injunc- 
tion in  equity  to  restrain  proceedings  at  law,  in  that  the  latter 
affects  only  the  parties,  while  the  former  is  directed  against 
the  forum  itself. 

114.  The  Writ  of  Scire  Facias. — The  proceeding  by  writ 
of  scire  facias  is  sometimes  spoken  of  as  an  action.  It  is  a 
judicial  writ  founded  upon  some  record,  and  addressed  to  the 
sheriff,  commanding  him  to  make  known  to  the  defendant 
that  he  is  required  to  appear  and  show  cause  why  the  plaintiff 
should  not,  as  against  him,  have  the  advantage  of  some  obli- 
gation of  record  that  does  not  furnish  ground  for  an  immedi- 
ate execution  against  him.  It  is  the  proper  proceeding  for 
the  revivor  of  a  dormant  judgment ;  or  to  make  an  obligor 
not  served  in  the  original  suit,  a  party  defendant  to  the  judg- 
ment therein;  and,  in  some  cases,  to  enforce  the  liability  of 
bail  on  a  recognizance.^ 

»  3  Bl.  Com.  416,  431  ;  Bank  v.  Hart,  19  Ohio,  372. 


CHAPTER  XI. 

THE  PRINCIPAL  RULES  OF  PLEADING.' 

115.  Origin  and  Object  of  Rules. — The  immediate  ob- 
ject of  the  judicial  altercation  is,  to  ascertain  the  subject  for 
decision ;  and  under  the  common-law  procedure,  this  is  done 
by  the  production  of  an  issue.  To  facilitate  as  Avell  the  pro- 
duction of  an  issue  as  its  decision  thereafter,  parties  are  re- 
quired to  construct  their  opposing  statements  according  to 
certain  logical  and  legal  principles,  in  order  that  the  state- 
ments may  be  intelligible,  certain,  consistent,  and  truthful ; 
that  the  issue  evolved  may  be  real,  material,  and  definite  ;  and 
that  its  decision  may  be  conclusive  of  the  controversy.  For 
the  promotion  of  these  objects,  there  grew  up  in  the  common- 
law  procedure  certain  rules  of  pleading^  which,  while  they 
furnished  practical  guidance  to  tlie  pleader,  gave  to  the  sys- 
tem that  logical  coherence  and  scientific  character  which 
distinguish  it.  These  rules,  most  of  which  are  equally 
applicable  to  pleading  under  the  reformed  procedure,  will 
here  be  stated,  with  such  comment  as  will  make  clear  their 
meanings  and  uses. 

I.   RULES  FOR  THE  PRODUCTION  OF  AN  ISSUE. 

116.  After  the  Declaration,  the  Parties  Must  Alter- 
nately Demur  or  Plead. — This  rule  requires  the  defendant 
either  to  demur  to  the  declaration,  or  to  plead  thereto.  If 
he  demurs,  he  tenders  an  issue  in   law  ;  and  if  he  pleads  by 

'  Tlie  arrangement  used  by  Mr.     given  in  this  historical  outline,  the 
Steplien,  though  not  the  most  logi-    reader  is  referred  to  the  same  topics 
cal,  is  convenient,  and  is  substan-    in  the  works  of  Stephen,  Gould, 
tially  followed  in  this  chapter.     For    Chitty,  and  Evans. 
more  detailed   treatment   than  is 

101 


§117  HISTORY  OF  PLEADING.  102 

way  of  traverse,  he  tenders  an  issue  in  fact.  If  he  pleads  by 
way  of  confession  and  avoidance,  he  of  course  does  not  ten- 
der issue  ;  but,  under  this  rule,  the  plaintiff  must  then  either 
demur  to  the  plea,  or  reply  thereto ;  and  so  on,  until  issue  is 
tendered.  If  a  party,  required  by  this  rule  to  demur  or  to 
plead,  does  neither,  his  adversary  may  have  judgment  by  nil 
dicit. 

The  nature,  the  kinds,  and  the  effects  of  demurrer  have 
already  been  fully  explained.^  So,  also,  have  the  pleadings 
subsequent  to  the  declaration,  both  by  way  of  traverse  and 
by  way  of  confession  and  avoidance,  been  fully  considered.^ 
Two  rules,  however,  should  here  be  noticed.  The  first  is, 
that  every  pleading  should  answer  the  whole  of  what  is  ad- 
versely alleged  ;  and  the  second,  that  every  pleading  is  taken 
to  confess  all  such  traversable  matters  alleged  on  the  other 
side  as  it  does  not  traverse. 

This  latter  rule  gave  rise  to  the  practice  of  protestation, 
whereby  a  party  saves  himself  from  being  concluded  by  his 
failure  to  traverse  some  matter  alleged  against  him.  When 
a  party  is  not  at  liberty  to  traverse  the  whole  of  his  adver- 
sary's pleading,  he  may  preserve  the  right  to  traverse,  in  an- 
other action,  the  matter  passed  over,  by  simply  protesting 
that  it  is  untrue.  By  protestation  the  pleader  denies  a  fact, 
without  putting  it  in  issue.  Such  denial  has  no  effect  in  the 
principal  case,  for  so  far  as  that  case  is  concerned,  the  fact 
protested  against  is  taken  as  admitted. 

117.  Upon  a  Traverse,  Issue  Must  be  Tendered. — It 
has  been  shown  that  tender  of  issue  is  a  necessary  incident 
to  all  forms  of  traverse,  except  the  special  traverse.^  The 
reason  is,  that  as  the  matter  in  dispute  sufficiently  appears 
by  the  -  traverse,  there  is  nothing  to  be  accomplished  by 
further  altercation.  The  formulae  for  tendering  an  issue  in 
fact  vary  according  to  the  mode  of  trial.  The  tender  of  an 
issue  to  be  tried  by  jur}^  is  by  a  formula  called  the  "  conclu- 
sion to  the  country ;  "  which,  if  by  the  plaintiff,  is,  "  And 
this  the  said  A.  B.  prays  may  be  inquired  of  by  the  country ;  " 

'  Ante,  79  et  seq.  ^  Ante,  66. 

*  Ante,  58  et  seq. 


103  COMMON-LAW  PROCEDUEE.  §§118-119 

and  if  by  the  defendant,  it  is,  "  And  of  this  the  said  C.  D. 
puts  himself  upon  the  country."  ^  When  the  fact  traversed 
is  matter  of  record,  issue  is  not  tendered  by  conclusion  to  the 
country,  for  the  reason  that  a  record  is  of  a  nature  so  high, 
and  imports  such  verity,  that  it  should  be  tried  only  by  an 
inspection  of  the  record  itself.  Hence,  when  a  matter  of 
record  is  pleaded,  and  the  opposite  party  pleads  nul  tiel  record^ 
he  must  tender  issue  by  a  formal  demand  that  the  matter  be 
inquired  of  by  the  record ;  and  the  issue,  when  joined,  is 
triable  only  by  inspection  of  the  record,  by  the  court.^ 

118.  Issue,  When  Well  Tendered,  Must  be  Accepted. 
— When  a  pleading  concludes  to  the  country,  the  opposite 
party  must,  if  the  issue  be  well  tendered,  both  in  point  of 
substance  and  in  point  of  form,  accept  or  join  in  it.  This  is 
done  by  filing  what  is  called  the  similiter^  in  these  words : 
"  And  the  said  doth  the  like."  ^  If  the  issue  be  not 
well  tendered,  that  is,  if  the  traverse  be  bad,  in  substance  or 
in  form,  or  if  the  issue  be  not  triable  by  jury,  the  opposite 
party  may  demur.  When  the  issue  tendered  is  to  be  tried 
by  the  record,  no  formal  acceptance  of  it  is  required. 

This  rule  applies,  also,  to  an  issue  in  law,  tendered  by  de- 
murrer ;  and  the  party  whose  pleading  is  opposed  by  a  de- 
murrer must  formally  accept  the  issue,  whether  well  or  ill 
tendered,  by  a  set  form  of  words  called  "  joinder  in  demurrer," 
whereby  he  reaffirms  the  legal  sufficiency  of  his  pleading.* 

119.  Rules  to  Prevent  Prolixity  and  Delay. — Subserv- 
ient to  the  foregoing  rules  for  the  production  of  an  issue,  are 
the  following,  to  prevent  the  retardation  of  the  issue. 

There  must  be  no  departure  in  pleading.  Departure  takes 
place  when  a  party  deserts  his  former  ground  of  complaint 
or  defense,  and  resorts  to  another.  Each  successive  jDleading 
must  fortify  what  has  previously  been  pleaded  by  the  same 
party.  That  is,  the  replication  must  support  the  declaration, 
the  rejoinder,  the  plea  in  bar,  and  so  on ;  otherwise,  the 
parties  might,  by  changing  the  grounds  of  complaint  and  of 
defense,  indefinitely   prolong   the   judicial   altercation,  and 

'  Ante,  63.  3  ^nte,  62. 

•  Ante,  62,  and  note.  *  Ante,  80. 


^ 


g  120  HISTORY  OF  PLEADING.  104 

delay  the  issue.  If  to  assumpsit  the  defendant  plead  infancy, 
and  to  a  replication  of  necessaries  he  rejoin  payment,  the 
rejoinder  is  a  departure;  but  if  to  a  declaration  upon  a 
statute,  the  defendant  plead  its  repeal,  a  replication  that  it 
has  been  revived  by  a  subsequent  act  is  not  a  departure. 
The  replication  would  fortify  the  ground  taken  in  the  declar- 
ation; for  the  reviving  act  gives  new  effect  to  the  former,  on 
which  the  action  is  founded.^ 

A  plea  that  amounts  to  the  general  issue  should  be  so 
pleaded.  In  debt  for  the  price  of  a  horse  sold,  a  plea  that 
the  defendant  did  not  buy  is  bad,  for  it  amounts  to  nil  debet. 
If  in  debt  on  bond,  the  defendant  confess  the  bond,  but 
allege  that  it  was  executed  to  a  person  other  than  the  plaint- 
iff, the  plea  is  bad,  as  amounting  to  the  general  issue  non  est 
factum^  which  would  be  the  proper  plea.^ 

All  surplusage  should  be  avoided.  This  rule  excludes  not 
only  matters  wholly  foreign,  but  matters  which,  though  not 
wholly  foreign,  do  not  require  to  be  stated ;  it  sanctions 
terseness  and  brevity  of  statement,  and  condemns  prolixity. 
Superfluous  matter  does  not,  in  general,  vitiate  a  plead- 
ing; the  maxim  being  utile  per  inutile  non  vitiatur.^  But 
where  the  surplusage  consists  in  an  unnecessary  detail  of 
circumstances,  so  connected  with  material  matter  as  to  be  in- 
separable from  it,  the  whole  may  be  traversed,  and  the  party 
so  pleading  will  then  be  required  to  prove  his  allegations 
with  the  same  particularity  with  which  he  has  pleaded  them.* 
The  court  may  order  redundant  and  immaterial  matter  to  be 
stricken  from  a  pleading. 

II.   RULES  FOR  SECURING  MATERIALITY  IN  THE  ISSUE. 

120.  Of  Materiality  in  General. — Materiality  is  of  the 
essence  of  the  judicial  altercation.  Immateriality  is  an 
unpardonable  fault  in  pleading.  It  is  a  defect  which  no  cir- 
cumstance, not  even  the  verdict  of  a  jury,  or  tlie  judgment 
of  a  court,  can  cure.  If  averments  or  denials  be  not  impor- 
tant to  the  decision  of  a  cause,  no  matter  how  formally  they 

'  Gould  PI.  viii.  71.  ^  gteph.   pi.   411 ;  Gould  PL  iiL 

»  Steph.  PI.  407.  170. 

4  Steph.  PI.  413. 


105  COMMON-LAW  PROCEDURE.  §  121 

may  be  made,  and  no  matter  how  true  they  may  be,  they  can 
not  avail  the  parties,  or  advance  the  administration  of  justice. 

A  pleading  must  be  material  in  itself  ;  that  is,  if  a  declara- 
tion, it  must  show  a  right  of  action  in  the  plaintiff  and 
against  the  defendant.  If  a  subsequent  pleading,  it  must 
respond  to  that  next  preceding  it,  must  be  consistent  with 
the  state  of  the  case  at  the  time,  and  must  tend  to  forward 
the  altercation.  A  pleading  must  also  be  material  as  to  the 
parties.  The  declaration  must  make  the  proper  person 
plaintiff,  and  the  proper  person  defendant,  and  the  aver- 
ments of  subsequent  pleadings  must  relate  to  these  parties. 
And  a  pleading  by  way  of  traverse  must  tender  a  material 
issue  ;  that  is,  an  issue  fit  to  decide  the  action.    • 

121.  Only  Material  Matter  Traversable. — The  object 
of  the  judicial  altercation  is  to  ascertain  the  subject  for 
decision.  This  the  common-law  procedure  does  by  the  de- 
velopment of  an  issue — a  specific  matter  affirmed  by  one 
party  and  denied  by  the  other.  It  is  clear  that  the  point  so 
proposed  and  accepted  for  decision  must  be  one  whose  deter- 
mination will  decide  the  real  controversy ;  otherwise,  the 
determination  of  it  decides  nothing,  and  the  court  may 
award  a  repleader,  in  order  to  obtain  a  material  issue. 

In  debt  on  bond,  an  allegation  that  defendant  was  of  full 
age  when  he  gave  the  bond  is  premature  and  unnecessary, 
and  a  traverse  of  such  allegation  would  present  an  imma- 
terial issue.  In  such  case,  infancy  is  a  defense,  and  should 
not  be  anticipated  in  the  declaration. 

Traverse  of  matter  of  aggravation,  which  tends  only  to 
increase  the  amount  of  damage,  and  does  not  concern  the 
right  of  action,  tenders  an  immaterial  issue.  In  trespass  for 
chasing  sheep,  whereby  they  died,  a  traverse  of  the  dj-ing, 
which  is  matter  of  aggravation,  tenders  an  immaterial  issue. 

The  traverse  of  only  one  of  several  material  allegations  is 
not  in  conflict  with  this  rule  *,  for  where  several  distinct 
allegations  are  essential  to  a  cause  of  action,  the  denial  of 
any  one  of  these  is  destructive  of  the  right  of  action,  and 
tenders  a  material  issue. ^ 

'  Steph.  PI.  295 


§§122-123  HISTORY  OF  PLEADING.  106 

ni.    RULES  FOR  SECURING  SINGLENESS    IN  THE  ISSUE. 

122.  Pleadings  Must  Not  he  Double. — This  means  that 
the  declaration  must  not,  in  support  of  a  single  demand, 
allege  several  distinct  matters,  any  one  of  which  will 
support  such  demand ;  and  that  any  subsequent  pleading 
must  not  contain  several  distinct  answers  to  that  which 
precedes  it.  A  violation  of  this  rule  tends  to  create  several 
issues  in  respect  of  a  single  claim,  and  is  called  duplicity. 

In  assumpsit  for  nourishing  the  defendant,  if  the  plaintiff 
allege  the  defendant's  request,  and  his  promise  to  pay  a  sum 
certain  for  the  services,  and  also  that  he  promised  to  pay  so 
much  as  the  services  were  reasonably  worth,  the  declaration 
is  bad  for  duplicity. 

This  rule  does  not,  however,  forbid  the  allegation  of  dis- 
tinct matters  in  support  of  as  many  several  demands ;  and  it 
allows  the  making  of  distinct  answers  to  different  matters  of 
complaint,  but  not  several  answers  to  the  whole  of  the  dec- 
laration. In  an  action  on  two  bonds,  the  defendant  may 
plead  payment  as  to  one,  and  duress  as  to  the  other  ;  but  if 
he  plead  as  to  one  a  release  of  all  actions,  and  as  to  the  other 
duress,  his  plea  will  be  double,  because  the  release  is  an 
answer  to  the  whole  of  the  declaration. 

Matter  that  is  immaterial  will  not  make  a  pleading  double  ; 
though  material  matter  ill  pleaded  will.  The  reason  is,  that 
no  issue  can  properly  be  taken  upon  immaterial  matter ;  but 
if  material  matter  be  ill  pleaded,  the  opposite  party  may 
waive  the  formal  objection,  and  go  to  issue  upon  it. 

Neither  a  protestation,  nor  matter  that  is  only  an  induce- 
ment to  another  allegation,  will  make  a  pleading  double. 
And  several  matters  that  together  constitute  but  one  con- 
nected proposition  do  not  make  a  pleading  double.^ 

123.  The  Joinder  of  Causes. — Where  a  plaintiff  has 
several  distinct  rights  of  action  against  the  same  defendant, 
he  may,  subject  to  certain  limitations  as  to  the  character  of 
his  demands,  join  them  in  the  same  action.  In  cases  of  join- 
der, each  cause  of  action  must  be  separately  stated,  and  must 
be  complete  within  itself.     Each  of  several  causes  so  joined 

1  As  to  duplicity  at  common  law,  see  Steph.  PI.  300-310. 


107  COMMON-LAW  PROCEDURE.  §124 

is  called  a  count ;  and  to  each  count  the  defendant  may  de- 
mur or  plead,  as  though  it  stood  alone. 

As  to  what  causes  may  be  joined,  there  has  always  been 
some  diversity  among  writers  on  pleading.  The  general  rule 
seems  to  be,  that  only  those  within  the  same  form  of  action, 
and  not  requiring  different  judgments,  may  be  joined.  Thus, 
debt  on  bond  and  debt  on  simple  contract  may  be  joined,  but 
debt  and  trespass  can  not  be.  The  reasons  probably  are  ;  (1) 
that  each  form  of  action  had,  originally,  its  peculiar  form  of 
original  writ,  and  one  action  could  not  be  grounded  on  two 
writs,  and  (2)  that  only  one  judgment  could  be  rendered  in 
one  action,  and  causes  requiring  different  forms  of  action 
might  also  require  different  judgments.^ 

Actions  in  form  ex  contractu  can  not  be  joined  with  those 
in  form  ex  delicto.  A  plaintiff  can  not  join  a  demand  in  his 
own  right  and  a  demand  en  autre  droit ;  nor  can  he  join  a 
demand  against  the  defendant  on  his  own  liability  and  one 
on  his  liability  in  a  representative  capacity.  For  example,  a 
demand  against  the  defendant  as  executor  and  a  demand 
against  him  personally  may  not  be  joined ;  for  as  to  one  the 
judgment  would  be  de  bonis  testatoris,  and  as  to  the  other 
it  would  be  de  bonis  propriis.^ 

Misjoinder  of  causes  is  fatal  to  the  declaration,  on  demur- 
rer, on  motion  in  arrest  of  judgment,  or  on  writ  of  error.^ 

The  joinder  of  several  counts,  each  relating  to  a  distinct 
demand,  does  not  violate  the  rule  against  duplicity,  the  ob- 
ject of  which  is  only  to  prevent  several  issues  in  respect  of 
a  single  demand.* 

124.  Use  of  Several  Counts  for  One  Right  of  Action. — 
It  sometimes  happens  that  a  pleader,  having  stated  a  case  in 
one  form,  is  in  doubt  as  to  its  sufficiency  in  point  of  law,  or 
as  to  sustaining  it  in  point  of  fact.  To  avoid  miscarriage  in 
such  case,  the  practice  grew  up,  under  a  relaxation  of  the 
rule  against  duplicity,  of  inserting  two  or  more  counts,  differ- 
ing in  form,  but  all  based  upon  the  same  state  of  facts,  and 

1  Evans  PI.  80  ;  Gould  PI.  iv.  84,  »  Gould  PI.  iv.  97  ;  1  Ch.  PI.  205. 
d6,  97.  4  Steph.  PI.  310. 

*  1  Ch.  PI,  199-204. 


gj  13ft- 126  HISTORY  OF  PLEADING.  108 

ill  support  of  the  same  demand.  For  example,  in  an  notion 
for  the  price  of  goods,  the  circumstances  of  the  transaction 
may  be  such  as  to  make  it  doubtful  whether  the  action  should 
be  for  goods  sold  and  delivered,  or  for  work  and  labor  done  i 
in  which  case,  two  counts  would  be  inserted,  setting  forth 
the  one  demand  in  tliese  two  ways. 

It  is  to  be  observed,  however,  that  when  a  declaration  con- 
tains several  counts,  whether  for  distinct  demands  or  for  but 
one,  they  must  always  purport  to  be  founded  on  separate  and 
distinct  rights  of  action,  and  not  to  refer  to  the  same  matter. 
In  this  way,  while  the  rule  against  duplicity  is  evaded,  it  is 
not  directly  violated.^ 

125.  Use  of  Several  Pleas. — Formerly,  but  one  plea  could 
be  pleaded  to  any  one  count ;  and  if  the  defendant  had  sev- 
eral defenses  to  one  demand  of  the  plaintiff,  he  was  obliged  to 
rely  upon  the  one  he  thought  most  available.  But  this 
restriction,  after  being  observed  for  ages,  was  finally  so  far 
relaxed  by  legislative  enactment,  as  to  allow  the  defendant, 
by  leave  of  the  court  first  obtained,  to  plead  several  defenses 
to  one  subject  of  complaint.  This  relaxation  extends  only 
to  pleas  in  bar,  and  not  to  dilatory  pleas ;  and  it  does  not 
extend  to  subsequent  pleadings. 

For  the  same  reason  that  a  party  is  not  allowed  to  plead 
double,  he  is  not  permitted  both  to  plead  and  demur  to  the 
same  matter,  lest  an  issue  in  fact  and  an  issue  in  law,  in 
respect  of  a  single  subject,  be  thereby  produced.  But  this 
inhibition  does  not  prevent  a  party  from  pleading  as  to  one 
matter,  and  demurring  as  to  another  distinct  matter* 

IV.    RULES   FOR    SECURING   CERTAINTY   IN   THE   ISSUE. 

126.  Certainty  in  Pleading. — It  is  obvious  that  some  de- 
gree of  certainty  is  indispensable  to  the  judicial  altercation. 
The  old  writers  perplexed  the  subject  with  much  useless 
refinement  as  to  degrees  of  certainty.  They  distinguished 
three  degrees ;  certainty  to  a  common  intent,  certainty  to  a 
certain  intent  in  general,  and  certainty  to  a  certain  intent  in 

1  Steph.  PL  314  ;  Post,  206  et  seq.  '  Steph.  PI.  323. 


[00  COMMON-LAW  PROCEDURE.  §g  127-128 

every  particular.  Tlie  third,  or  highest  degree  of  certainty, 
being  required  only  in  pleas  of  estoppel,  and  in  dilatory  pleas; 
these  being  odious  pleas,  the  former  because  they  preclude  a 
party  from  asserting  the  truth,  inconsistent  with  the  matter 
pleaded,  and  the  latter  because  they  tend  to  defeat  suits  upon 
grounds  other  than  their  merits.^  Such  precision  and  clear- 
ness as  will  make  the  meaning  plain  to  the  ordinary  mind — 
and  this  is  certainty  to  a  common  intent — is  all  that  tl)e 
object  of  pleading  requires,  and  is  all  that  is  ordinarily 
demanded  as  to  the  manner  of  statement.  The  certainty  re- 
quired at  common  law  relates  mainly  to  parties,  place,  time, 
and  subject.^ 

127.  Certainty  as  to  Parties. — For  the  purpose  of  identi- 
fying the  parties,  they  should  be  described  by  both  Christian 
name  and  surname  ;  and  if  either  has  a  name  of  dignity,  that, 
too,  must  be  used. 

If  two  or  more  persons  sue,  or  are  sued,  as  copartners,  the 
full  name  of  each  person  must  be  used.  The  use  of  the 
film  name  alone  would  not  be  a  sufficient  description  ;  for 
such  name,  being  purely  arbitrary,  may  not  contain  the  name 
of  any  member  of  the  firm,  and  so  would  not  identify  the 
persons  suing  or  being  sued.'* 

A  corporation  differs  from  a  copartnership  in  this,  that  it 
must  sue  or  be  sued  in  its  corporate  name  ;  for,  being  an 
artificial  person,  its  corporate  style  is  its  personal  name,  and 
identifies  it  with  certainty. 

A  mistake  in  the  name  of  a  party  is  ground  for  plea  in 
abatemsnt  only  ;^  but  misnomer  of  one  not  a  party  is  a  fatal 
variance.^ 

128.  Certainty  of  Place. — Formerly,  jurors  were  sum- 
mojied  fmm  the  particular  neighborhood  where  the  facts  in 
dispute  arose ;  and  as  a  guide  to  the  sheriff  in  executing 
the  venire  facias^  the  declaration  was  required  to  show  the 
county  and  neighborhood  in  which  the  matter  complained 

1  Gould  PI.  iii.  53-58.  ship  to  sue  or  be  sued  in  the  firm 

'  Gould  PI.  iii.  60.  name.     Post,  171,  180- 

*  This  rule  is  changed  in  many  of  "*  Ante,  58. 

the  states,  authorizing  a  copartner-  «  Steph.  PL  341. 


§  123  HISTORY  OF  PLEADING.  IK 

of  arose.  Such  place  was  called  the  venue  in  the  action,  and 
the  allegation  thereof  was  called  laying  the  venue.  If  a  subse- 
quent pleading  alleged  new  matter,  so  as  to  divert  the  con- 
tention to  such  new  matter,  it  was,  for  the  same  reason, 
required  to  lay  the  venue  of  such  new  matter.  If,  in  debt  on 
bond,  tlie  defendant  simply  denied  the  bond,  the  issue  would 
be  tried  l)y  a  jury  from  the  county  laid  in  the  declaration  ; 
but  if  the  defendant  pleaded  a  release,  laying  the  venue 
thereof  in  another  county,  the  issue,  upon  a  traverse  of  such 
plea,  would  be  tried  by  a  jury  from  the  latter  county.  And 
upon  the  establishment  of  nisi  prius  trials,  issues  triable  by 
jnry  were  to  be  tried,  not  only  by  a  jury  of  the  vicinage,  but 
within  the  county  where  the  facts  arose  ;  hence  the  laying 
of  the  venue  served  the  additional  purpose  of  indicating  the 
place  for  trial.  But  in  more  modern  times,  when  jurors  are 
to  decide  causes  upon  the  testimony  of  witnesses,  and  not 
upon  what  they  personally  know  of  the  facts  in  issue,  they 
are  uniformly  summoned  from  the  body  of  the  county  in  which 
the  action  is  laid,  whether  that  be  the  venue  laid  to  the  fact 
in  issue  or  not. 

Before  the  change  in  the  constitution  of  juries,  the  reason 
of  the  law  required  the  venue  to  be  laid  in  the  true  place 
where  the  fact  arose  ;  but  after  such  change,  and  when  the 
venue  came  to  relate  only  to  the  place  for  trial,  this  reason 
ceased  to  operate,  and  the  law  began  to  distinguish  between 
cases  wherein  the  truth  of  the  venue  was  material,  or  of  the 
substance  of  the  issue,  and  those  in  which  it  was  not  so.  A 
difference  now  began  to  be  recognized  between  mattere  local 
and  matters  transitory.^  It  was  held  that  when  a  local  fact 
was  laid  at  a  certain  place,  and  issue  was  taken  on  such  fact, 
the  place  was  part  of  the  substance  of  the  issue,  and  must  be 
proved  as  laid  ;  but  that  a  transitory  fact  might  be  laid  as 
having  happened  at  one  place,  and  might  be  proved  to  have 
occurred  at  another.     It  was  accordingly  held,  that  in  a  local 

'  Steph.     PI.     329,     330.      Local  such  as  might  have  happened  any- 

facts  are  such  as  carry  with  them  where  ;  and  comprise  generally  all 

the   idea  of  some    certain  place  ;  matters  relating  to  the  person  or 

and  comprise  aU  matters  relating  to  personal  property  ;  such  as  debts, 

to    realty.     Transitory    facts   are  contractB,  etc. 


Ill  COMMON-LAW  PROCEDURE.  §129 

action — one  in  which  all  the  principal  facts  on  which  it  is 
founded  are  local — the  venue  in  the  action  must  be  laid 
truly  ;  but  that  in  a  transitory  action — one  in  which  any 
principal  fact  is  of  the  transitory  kind — the  venue  may  be 
laid  in  any  county.^  But  whether  the  action  be  local  or 
transitory,  every  local  fact  alleged  in  any  pleading  must  be 
laid  with  its  true  venue,  on  peril  of  a  variance,  should  the 
fact  be  brought  in  issue.  And  it  seems  that  when  a  transi- 
tory matter  is  alleged  out  of  its  true  place,  it  should  be  laid 
under  a  videlicet ;  that  is,  with  the  prior  intervention  of  the 
words  "  to  wit,"  or  "  that  is  to  say  ; "  the  effect  of  which  is, 
to  mark  that  the  party  does  not  undertake  to  prove  the  pre- 
cise place. 2 

129.  Certainty  of  Time. — In  personal  actions,  the  plead- 
ings must  allege  the  time  when  each  traversable  fact  oc- 
curred ;  and  wlien  a  continuous  act  is  alleged,  the  period  of  its 
duration  should  be  stated.  If  the  continuity  of  the  act  be 
such  as  to  constitute  but  one  occasion,  it  should  be  laid  with 
a  continuando — "  and  continuing  tlie  said  acts  for  three 
days  following ; "  otherwise,  the  acts  should  be  laid  on  a 
particular  day,  "  and  on  divers  other  days  and  times,"  be- 
tween that  and  another  day  named.^  The  laying  of  time, 
like  tlie  laying  of  venue,  applies  only  to  traversable  facts, 
and  does  not  extend  to  matters  of  inducement  or  of  aggra- 
vation. 

The  same  liberty  that  applies  to  the  allegation  of  place,  in 
transitory  matters,  applies  to  allegations  of  time,  in  matters 
generally.  But  this  rule  is  subject  to  certain  restrictions.  (1) 
If  the  pleader  does  not  wish  to  be  held  to  prove  the  time 
alleged,  it  should  be  laid  under  a  videlicet.  (2)  A  time 
that  is  intrinsicall}^  impossible,  or  is  inconsistent  with  the 
fact  to  which  it  relates,  should  not  be  laid ;  and  if  so  laid,  to 
a  traversable  fact,  is  subject  to  demurrer.     (3)  If  time  is  a 


'  From  an  abuse  of  this  right  to    of  the  defendant,  and  for  his  pro- 
lay  the  venue  in  transitory  actions    tection. 
in  any  county,  arose  the  practice        '  Steph.  PI.  332. 
of  changing  the  venue,  on  motion        ^  Gould  PI.  iii.  86-89  ;  Bouv.  Die, 

voce  "  Continuando." 


gl30  HISTORY  OF  PLEADING.  112 

material  point  in  the  merits  of  the  case,  and  the  time  laid 
be  traversed,  it  is  of  the  substance  of  the  issue,  and  must  be 
strictly  proved,  to  avoid  a  variance.  In  such  case,  the  inser- 
tion of  a  videlicet  will  not  avail. 

Tlie  general  rule  is,  that  when  time  is  immaterial,  the 
pleader  is  not  confined  in  his  allegations  to  the  true  time,  nor 
in  his  proofs  to  the  time  alleged.  But  in  pleading  any  writ- 
ing,— such  as  a  record,  promissory  note,  or  bill  of  exchange, 
— the  date  thereof  should  be  truly  stated ;  for  though  the 
date  of  a  contract  is  strictly  no  part  of  the  contract,  it  enters 
into  the  description  of  it,  and  if  misstated  in  the  pleading, 
there  will  be  a  variance  in  the  proof.  Certainty  in  such  case 
is  required  for  the  further  reason,  that  the  judgment  on  such 
instrument  may  be  a  bar  to  another  suit  on  the  same  instru- 
ment.^ 

130.  Certainty  as  to  the  Subject  of  the  Action.— In 
actions  for  injury  to  goods  and  chattels,  the  declaration 
should  show  the  quantity,  quality,  and  value;  and  inactions 
for  the  recovery  of  real  property,  its  quantity  and  quality 
should  be  specified.  This  requirement  as  to  description  of 
the  property  is  for  tlie  purpose  of  identifying  it ;  the  value  is 
to  be  alleged  to  furnish,  prima  facie^  a  rule  of  damages. 
But  as  the  pleader  is  not  obliged  to  state  the  true  value,  this 
requirement  is  of  no  practical  use.^ 

Pleadings  must  show  title.  That  is,  when  a  right  is  as- 
serted in  respect  of  certain  property,  real  or  personal,  some 
adequate  title  thereto  must  be  alleged ;  or  if  a  pleading 
charges  one  with  liability  in  respect  of  ceitain  property,  his 
title  to  such  property  must  be  alleged.  Such  title  must  be 
alleged  as  will,  in  law,  sustain  the  right  asserted,  or  the  lia- 
bility charged.^ 

Where  the  property  is  personal,  if  a  title  of  possession  is 
sufficient,  it  may  be  shown  by  following  a  description  of  the 
property  with  the  phrase  "the  goods  and  cliattels  of  the  said 
plaintiff."  Ownership  of  chattels  may  be  sliown  by  alleging 
that  the  party  was  "lawfully  possessed  of  them  as  of  his  own 

'  Gould  PL  ui.  60-101 ;  Steph.  PL  2  Gould  PL  iv.  37  ;  Steph.  PL  340. 
833  et  seq.  ^  steph.  PL  342  ;  Post,  323-325. 


113  COMMON-LAW  PROCEDURE.  gl31 

property."  Where  the  property  is  real,  and  a  title  of  posses* 
sion  is  sufficient,  if  it  be  a  corporeal  hereditament,  the  allega* 
tion  may  be  that  it  was  "  the  close  of  the  plaintiff,"  or,  that 
he  was  "  lawfully  possessed  of  a  certain  close."  If  it  be  an 
incorporeal  hereditament,  the  allegation  should  be  that  the 
party  was  possessed  of  the  corporeal  thing  in  respect  of  which 
the  right  is  claimed,  and  by  reason  thereof  was  entitled  to 
the  right  in  question,  at  the  time  in  question.  If  more  than 
a  title  of  possession  is  required,  it  must  be  stated  in  its  ful) 
and  precise  extent ;  as,  that  the  party  was  "  seized  in  his  de 
mesne  as  of  fee  of  and  in  a  certain  messuage." 

Where  it  is  necessary  to  allege  the  derivation  of  title,  if 
the  party  claim  by  inheritance,  he  must  show  how  he  is  heir; 
to  wit,  as  son  or  daughter.  If  he  claim  by  immediate  de- 
scent, he  must  show  the  pedigree ;  for  example,  if  he  claim  as 
nephew,  he  must  show  how  he  is  nephew.  If  a  party  claim 
by  conveyance  or  alienation,  the  nature  of  the  conveyance  or 
alienation  must  be  stated,  and  stated  according  to  its  legal 
effect  rather  than  its  form  of  words.^ 

131.  Certainty  as  to  Subject  of  Action,  Continued. — 
Where  a  party  alleges  title  in  his  adversary,  it  need  not  be 
alleged  more  precisely  than  is  sufficient  to  show  the  liability 
sought  to  be  charged  in  respect  of  it;  and  generally,  less 
precision  is  required  than  where  a  party  states  his  own  title. 
For  example,  where  a  plaintiff  alleges  title  in  himself  to 
a  particular  estate,  the  commencement  thereof  should  be 
shown,  unless  it  be  alleged  by  way  of  inducement ;  but  in 
l)leading  such  title  in  his  adversary,  the  commencement  need 
not  be  shown. 2 

Where  the  opposite  party  is  estopped  from  denying  title, 
no  title  need  be  shown.  Thus,  in  an  action  for  goods  sold 
and  delivered,  the  plaintiff  need  not  allege  that  they  were 
his  goods.  So,  in  an  action  by  lessor  against  lessee,  on  the 
lease,  title  need  not  be  alleged  ;  for  the  tenant  is  estopped 
from  denying  his  landlord's  title,  so  far  as  necessary  to 
authorize  the  lease.  But  if  such  action  be  by  the  heir,  ex- 
ecutor, or  assignee  of  the  lessor,  title  of  the  lessor  must  be 

'  Steph.  PI.  349.  »  Steph.  PL  353. 


§132  HISTORY  OF  PLEADING.  II4. 

alleged,  to  show  that  the  reversion  is  legally  vested  in  the 
plaintiff ;  for  the  tenant  is  not  bound  to  admit  title  greater 
than  would  authorize  the  lease. ^ 

Pleadings  must  show  authority.  That  is,  where  a  party 
instifies  under  a  writ,  or  other  authority,  he  must  set  it  forth 
particularly,  and  must  show  that  he  has  substantially  pursued 
it.  Where  a  defendant  justifies  under  judicial  process,  if  he 
be  an  officer  who  executed  the  writ,  he  is  required  to  plead 
only  the  writ,  and  not  the  judgment  on  which  it  was 
founded  ;  otherwise,  he  must  set  forth  not  only  the  writ,  but 
the  judgment  as  well.  The  reason  for  this  distinction  is, 
that  it  is  an  officer's  duty  to  execute  a  writ  that  comes 
properly  to  him,  without  inquiring  about  the  validity  of  the 
judgment  on  which  it  was  founded.^ 

The  allegation  of  title,  or  of  authority,  if  put  in  issue, 
must  be  strictly  proved  as  laid.^ 

Pleadings  must  not  be  in  the  alternative.  A  charge  that 
the  defendant  wrote  and  published,  or  caused  to  be  written 
and  published,  a  certain  libel,  is  bad  for  uncertainty.* 

132.  Rules  Limiting  the  Degree  of  Particularity.— 
The  foregoing  rules  for  securing  certainty  in  the  issue  are 
both  modified  and  amplified  by  certain  rules  tending  to 
secure  brevity,  and  thereby  clearness,  in  the  pleadings. 

It  is  not  necessary  in  pleading  to  state  that  which  is  merely 
matter  of  evidence ;  in  other  words,  in  alleging  a  fact,  those 
subordinate  circumstances,  which  merely  tend  to  prove  such 
fact,  need  not  be  stated.  This  rule  requires  discrimination 
between  operative  facts  and  evidential  facts.^ 

Matters  of  which  the  court  will,  ex  officio,  take  notice, 
need  not  be  stated.  This  includes  matters  of  law,  except 
private  statutes  and  foreign  laws,  and  all  those  facts  of  which 
courts,  for  various  reasons,  take  judicial  notice  without  alle- 
gation and  proof.^ 

A  party  should  not  state  matter  that  would  come  more 
properly  from  the  other  side.     This  means  that  a  pleader 

'  Steph.  PI.  354.  ■•  Steph.  PL  389. 

»  Steph.  PI.  (Tyler's  edition)  303.  »  Ante,  3  ;  Post,  347. 

»  Steph.  PI.  324-356  ;  Govld.  PI.  *  Post,  841,  342. 
iii.  166  et  seq. 


115  COMMON-LAW  PROCEDURE.  §  13^ 

should  not  anticipate  the  answer  of  his  adversary ;  which,  as 
Lord  Hale  said,  is  "  like  leaping  before  one  comes  to  the 
stile."  Pleadings  in  estoppel  are  an  apparent  exception  to 
this  rule.  These  must  be  certain  in  every  particular,  must 
leave  nothing  to  intendment,  and  must  remove,  by  anticipa- 
tion, every  possible  answer  of  the  adversary. 

It  is  not  necessary  to  allege  a  fact  necessarily  implied  from 
other  facts  alleged.  Thus,  if  a  feoffment  be  pleaded,  livery 
of  seizin  need  not  be  alleged.  Nor  is  it  necessary  to  allege 
what  the  law  will  presume.  In  an  action  for  slander  imput- 
ing theft,  the  plaintiff  need  not  aver  that  he  is  not  a  thief, 
for  the  law  presumes  that. 

A  general  mode  of  pleading  is  allowed  where  great  prolixity 
is  thereby  avoided,  or  where  the  allegations  on  the  other  side 
must  reduce  the  matter  to  certainty.  This  is  doubtless  the 
foundation  of  general  allegation  of  performance  of  conditions 
precedent,  authorized  by  some  of  the  codes.^ 

No  greater  particularity  is  required  than  the  nature  of  the 
thing  pleaded  will  conveniently  admit  of.  And  less  particu- 
larity is  required,  when  the  facts  lie  more  in  the  knowledge 
of  the  opposite  party  than  of  the  party  pleading. 

Less  particularity  is  necessary  in  the  statement  of  matter 
of  inducement,  or  of  aggravation,  than  in  the  main  allega- 
tions. This  is  probably  for  the  reason  that  matters  of  induce- 
ment and  of  aggravation  are,  as  a  general  rule,  not  traversable, 
and  therefore,  particularity  therein  will  not  conduce  to  cer- 
tainty in  the  issue. 

When  an  act  valid  at  common  law  is  regulated  as  to  the 
mode  of  performance,  by  statute,  only  such  certainty  of  al- 
legation is  required  as  was  sufficient  before  the  statute.  For 
example,  certain  leases,  valid  at  common  law  if  made  by 
parol,  are  required  by  the  statute  of  frauds  to  be  in  writing ; 
yet  in  declaring  upon  such  lease,  it  is  not  necessary  to  allege 
it  to  be  in  writing.  A  distinction  has  been  taken,  however, 
between  a  declaration  and  a  plea,  and  when  a  lease,  within 
the  statute,  is  pleaded  in  bar,  it  must  be  shown  to  be  in 
writiug.2 

»  Post,  372,  373.  «  Post,  333. 


Sg  133-135  HISTORY  OF  PLEADING.  116 

V.    RULES   TO  PREVENT   OBSCURITY   AND  CONFUSION. 

133.  Repugnancy  and  Surplusage. — When  matter  wholly 
inoperative  and  useless  is  stated,  it  is  denominated  surplusage^ 
and  will  be  disregarded  by  the  court ;  the  maxim  being, 
utile  per  inutile  non  vitiatur.  But  if  the  unnecessary 
matter  shows  that  the  party  has  no  right  of  action,  or  no 
defense,  it  renders  the  pleading  ill  in  substance,  and  can  not 
be  rejected  as  immaterial.^ 

Where  material  facts  stated  in  a  pleading  are  inconsistent 
one  with  another,  the  fault  is  denominated  repugnancy,  and 
is  ground  for  demurrer. 

134.  Of  Ambiguity. — A  pleading  that  is  doubtful  in 
meanin,g,  is  to  be  construed  most  strongly  against  the  party 
pleading.  This  rule  of  construction  is  directed  against  am- 
biguity, and  is  based  upon  the  presumption  that  every  per- 
son states  his  own  case  as  favorably  to  himself  as  possible. 
If,  in  trespass  quare  clausum  /regit,  the  defendant  plead 
that  the  locus  in  quo  was  his  freehold,  he  must  allege  that  it 
was  his  at  the  time  of  the  trespass.  But  a  pleading  is  to  have 
a  reasonable  intendment  and  construction,  and  this  rule  is  to 
be  applied  only  where  the  language  is  clearly  equivocal  and 
capable  of  different  meanings.^ 

In  debt  on  bond,  conditioned  to  procure  A.  to  surrender  a 
copyhold  to  the  use  of  plaintiff,  a  plea  that  A.  surrendered 
and  released  the  copyhold  to  plaintiff,  without  alleging  that 
the  surrender  was  to  the  plaintiff's  use,  is  sufficient ;  for  this 
shall  be  intended. 

135.  Forms  of  Allegation. — Much  care  and  attention  is 
given,  at  common  law,  to  the  forms  of  statement,  with  a 
view  to  prevent  obscurity  and  confusion.  All  pleadings  are 
required  to  be  absolute  in  form,  and  argumentativeness  is 
not  allowed.  Negatives  pregnant — denials  which  imply  an 
affirmative — are  not  allowed,  because  they  are  both  ambigu- 
ous and  argumentative  ;  and  two  affirmatives,  or  two  nega- 
tives, do  not  make  a  good  issue,  because  they  traverse  only 
by  way  of  argument.^ 

'  Gould  PI.  iii.  171.  » Steph.  PI.  384-389.    These  faults 

'  1  Ch.  PL  237,  238.  in  pleading    being  equally  faults 


117  COMMON-LAW  PROCEDURE.  glSS 

Things  are  to  be  pleaded  according  to  their  legal  effect 
or  operation.  A  written  instrument  should  be  set  forih,  not 
according  to  its  terms,  or  its  form,  but  according  to  its  effect 
in  law  ;  because,  to  ^jlead  it  in  terms  or  form  only,  is  an 
indirect  and  circuitous  method  of  allegation.  If  a  deed 
purporting  to  "  give,  grant,  bargain,  sell  and  release,"  can  be 
operative  in  law  only  as  a  release,  it  should  be  pleaded  as  a 
release;  and  if  it  can  operate  only  as  a  deed  of  barr/ain  and 
sale,  it  should  be  pleaded  as  such.  This  rule  extends,  not 
only  to  writings,  but  to  all  matters  and  transactions  in  which 
the  form  is  distinguishable  from  the  legal  effect.  But  in 
modern  times  this  rule  is  in  many  cases  relaxed,  and  the 
pleader  allowed  to  recite  the  instrument  in  hcec  verba,  and 
refer  its  legal  operation  to  the  court ;  and  in  actions  for  libel 
and  slander,  where  the  words  themselves  must  be  set  forth 
this  rule  never  obtained.^ 

136.  Approved  Forms  of  Expression. — Pleadings  should 
observe  tlie  ancient  forms  of  expression,  as  contained  in  ap- 
proved precedents.  It  was  not  possible  that  set  forms  of  ex- 
pression could  be  devised  for  every  matter  that  might  become 
the  subject  of  judicial  inquiry;  but  some  kinds  of  cases  re- 
curred so  often,  that  there  grew  up  for  them  stated  and  apt 
forms  of  allegation,  which  were  adhered  to  by  pleaders  until, 
by  long  usage,  they  became  established.  The  forms  of  trav- 
erse called  the  general  issues  are  examples  of  these  estab- 
lished precedents.^ 

Pleadings  should  also  have  their  proper  formal  commence- 
ments and  conclusions.  This  requirement  relates  only  to 
pleadings  subsequent  to  the  declaration  ;  and  its  importance 
lies  in  the  fact  that  the  formal  commencement  and  conclu- 
sion mark  the  object  and  tendency  of  the  pleading,  as  being 
to  the  jurisdiction,  to  the  disability,  in  abatement,  or  in  bar.^ 

Pleas  must  be  pleaded  with  a  defense ;  that  is,  they  must 
be  introduced  by  a  formal  resistance  of  the  matters  charged 
in  the  declaration.     In  personal  actions,  this  formal  introduc- 

under    the    Reformed    Procedure,        •  Steph.   PI.    390 ;  Gould  PI.  iii. 
their  full  consideration  is  reserved     174-182. 
for  a  subsequent  part.  Post,  360-362.        '  Steph.  PI.  392. 

3  Steph.  PI.  399. 


§136  HISTORY  OF  PLEADING.  US 

tion  is — "  And  the  said  C.  D.,  bj  E.  F.,  his  attorney,  comes 
and  defends  the  wrong  and  injury,  when  and  where  it  shall 
behoove  him,  and  the  damages,  and  whatsoever  else  he  ought 
to  defend,  and  says,"  etc.^  A  plea  in  bar  has  this  formal 
commencement :  "  says  that  the  said  plaintiff  ought  not  to 
have  or  maintain  his  aforesaid  action  against  him,  the  said 
defendant,  because,  he  says,"  etc.  And  it  has  this  formal 
conclusion,  following  the  verification  :  "Wherefore  he  prays 
judgment  of  the  said  plaintiff  ought  to  have  or  maintain  his 
aforesaid  action  against  him."  But  such  pleadings  as  tender 
issue  do  not  conclude  with  this  formal  prayer  of  judgment', 
but  with  .a  formal  offer  to  refer  the  issue  to  some  authorized 
mode  of  trial.^  And  all  pleadings  by  way  of  estoppel  have 
a  commencement  and  conclusion  peculiar  to  themselves.  A 
plea  in  estoppel  has  this  commencement :  "  says  that  the  said 
plaintiff  ought  not  to  be  admitted  to  say  "  (stating  the  mat- 
ter to  which  the  estoppel  relates),  and  this  conclusion  :  "  Where- 
fore he  prays  judgment  if  the  said  plaintiff  ought  to  be  ad- 
mitted, against  his  own  acknowledgment  by  his  deed  afore- 
said, (or  as  the  matter  of  estoppel  may  be),  to  say  that,"  etc.^ 
A  pleading  that  is  bad  in  any  material  part  is  bad  alto- 
gether. If  a  declaration  in  assumpsit  contain  two  counts,  on 
different  promises,  a  plea  of  the  statute  of  limitations,  to  both 
counts  conjointly,  if  good  as  to  one  and  insufficient  as  to  the 
other,  is  a  bad  plea  ;  and  upon  demurrer,  judgment  would  be 
given  for  the  plaintiff,  This  rule  seems  to  result  from  the 
requirement  that  each  pleading  shall  have  its  proper  formal 
commencement  and  conclusion.  As  the  commencement  and 
conclusion  of  a  single  plea  relate  to  and  question  the  whole 
action^  the  sufficiency  of  the  plea  must  be  determined  by  con- 
sidering it  as  an  answer  to  the  action  as  an  entirety  ;  and  if 
it  be  insufficient  as  to  one  count,  it  can  not  avail  as  to  the 
other.  If,  in  the  case  supposed,  the  statute  were  pleaded  to 
each  count  separately,  each  plea  having  its  own  commence- 
ment and  conclusion,  the  invalidity  of  one  could  not  vitiate 
the  other. 

'  Gould  PI.  u.  6 ;  Steph.  PI.  421.  »  Steph.  PI.  397. 

« Ante,  62. 


119  COMMON-LAW  PROCEDURE.  §136 

The  declaration,  having  no  such  commencement  and  con- 
clusion, does  not  fall  within  this  rule.  Therefore,  if  a  dec- 
laration be  bad  in  part,  but  good  in  another  part,  relating  to 
a  distinct  demand,  a  demurrer  to  the  declaration  as  an  en- 
tirety would  be  overruled,  and  judgment  given  for  tae 
plaintiff.^ 

» Steph.  PL  401. 


;^,   /3 


CHAPTER  XII. 

NATURE  AND  EXTENT  OF  EQUITY  JURISDICTION,  i 

137.  Defects   of   the   Common-law   Procedure. — The 

common-law  procedure  is  confined  within  narrow  channels, 
and  the  relief  afforded  by  its  courts  is  limited  to  such  as  may- 
be had  within  certain  well  defined  forms  of  action.  Its 
mode  of  procedure  is  fixed  and  unpliable,  while  *he  affairs  of 
life,  to  be  regulated  by  law  and  its  administration,  are  ever 
increasing  in  novelty  and  in  complexity.  The  substantive 
law,  tending  to  adapt  itself  to  the  changing  conditions  of  the 
people,  is  continually  recognizing  new  jural  relations,  giving 
rise  to  new  rights  to  be  protected,  and  new  duties  to  be 
enforced.  The  technical  and  unyielding  procedure  of  the 
common  law,  aided  and  adapted  from  time  to  time  by  the 
introduction  of  fictions,  was  long  ago  found  inadequate  to 
give  relief  in  many  cases  where  recognized  rights  were  threat- 
ened or  invaded. 

The  common-law  courts  do  not  protect  rights  by  laying 
personal  commands  upon  those  who  invade  them,  or  threaten 
to  invade  them.  For  refusal  to  perform  a  contract,  a  court 
of  law  can  only  adjudge  damages,  no  matter  how  inadequate 
such  relief  may  be,  or  how  important  actual  performance  may 
be  to  the  party  entitled  thereto.  A  court  of  common  law 
can  not  interfere  to  prevent  a  threatened  injury,  though  it  be 
in  its  nature  irreparable  by  damages  ;  all  it  can  do  is  to  award 
damages,  after  the  injury  has  been  committed. 

^  Equity  procedure  has  been  ance  in  courts  of  chancery,  but  to 
much  modified  in  this  country,  by  set  forth  the  equity  system,  as  one 
rules  prescribed  by  the  Supreme  of  the  progressive  stages  in  the 
Court  of  the  United  States,  and  historical  development  of  pleading, 
by  statutes  and  usage  in  the  itistheearlier  matured  system,  and 
several  states  ;  but  as  this  outline  not  the  modem  modifications  there- 
is  designed,  not  for  practical  guid-  of,  that  is  presented. 

120 


121  EQUITY  PROCEDURE.  gl38 

An  important  limitation  upon  the  power  of  common-law 
courts  is,  that  they  can  not  deal  with  a  controversy  to  which 
there  are  more  than  two  sets  of  parties.  The  jurisdiction  of 
a  court  of  law  is  contentious  only,  and  is  stiiclly  limited  to 
deciding  controversies.  A  judgment  at  law  must  be  simply 
for  the  plaintiff,  or  simply  for  the  defendant ;  there  can  be 
no  qualification  or  modification  thereof,  however  much 
justice  may  require  it ;  and  a  defendant  can  not  liave  affirma- 
tive relief  touching  the  subject-matter  of  the  action,  from 
either  the  plaintiff  or  a  co-defendant.  And  a  common-law 
court  can  enforce  its  judgment  for  the  recovery  of  money, 
only  by  execution  against  tangible  property ;  choses  in  action, 
and  equitable  interests,  whatever  their  amount  and  value,  can 
not  be  reached  by  its  process. 

138.  Origin  and  Nature  of  Equity  Jurisdiction. — The 
jurisdiction  in  equity  arose  as  the  complement  of  the  common 
law ;  in  some  instances  to  mitigate  and  moderate  it,  in 
others  to  extend  and  amplify  it.  So  narrow  and  so  technical 
had  the  common-law  procedure  become,  that  in  some  cases 
of  violence  to  recognized  rights  it  was  unable  to  afford  any 
relief;  in  others  it  did  not  furnish  an  adequate  remedy,  and 
in  some  instances  it  was  practically  subversive  of  justice. 
To  effectually  remedy  these  defects,  it  was  necessary  to 
create  a  subsidiary  juridical  system,  with  a  tribunal  not 
trammeled  by  the  rigid  formalities  that  circumscribed  the 
common-law  procedure.  A  juridical  system  was  needed  that 
would  regard  the  real  intent  of  parties,  rather  than  the  out- 
ward forms  they  had  employed ;  a  system  that  aimed  at  the 
prevention  of  injuries,  and  the  enforcement  of  duties,  rather 
than  mere  compensation  in  damages.  A  judicial  tribunal  was 
needed  that  should  proceed  upon  the  theory  that  parties 
litigant  owe  a  personal  obedience  to  the  court ;  a  tribunal 
whose  decrees  should  operate  in  personam,  compelling  the 
parties  to  do  whatever  it  should  be  decided  they  ought  to 
do ;  a  tribunal  that  could  deal  with  more  than  two  parties 
to  an  action,  and  that  could  mould  its  decrees  to  suit 
the  exigencies  and  peculiar  circumstances  of  a  particular 
case. 

To  supply  this  need  in  the  administration  of  justice,  the 


§  139  HISTORY  OF  PLEADING.  122 

jurisdiction  in  equity  arose,  whereby  the  Chancellor,  with- 
out the  intervention  of  a  jury,  made  and  enforced  his  orders, 
secundum  cequum  et  bonum.^ 

139.  Extent  of  the  Jurisdiction. — To  bring  a  cause 
within  the  jurisdiction  of  a  court  of  equity,  it  is  requisite, 
either  that  the  primary  right  involved  be  an  equitable  right, 
as  contradistinguished  from  legal  rights  ;  or,  that  the  remedy 
at  law — the  right  involved  being  a  legal  right — is  not  full, 
adequate,  and  complete.  For  example,  equity  recognizes  and 
protects  a  title  in  a  cestui  que  trust  that  is  not  recognized  at 
law.  The  essential  idea  of  a  trust  is,  the  separate  co- 
existence of  the  legal  title  in  one,  as  trustee,  and  of  the 
beneficial  ownership  in  another,  as  cestui  que  trust.  Of 
this  beneficial  interest  the  courts  of  common  law  took  no 
cognizance  ;  but  courts  of  equity  have  given  it  the  dignity 
and  the  protection  of  a  title. 

At  common  law,  a  mortgagee  becomes,  upon  default  of  the 
mortgagor,  the  absolute  owner,  and  the  mortgagor's  title  is 
wholly  gone.  But  equity,  to  relieve  the  mortgagor  from  this 
hardship  of  the  common  law,  recognized  a  title  still  remain- 
ing in  the  mortgagor ;  to  wit,  his  equity  of  redemption. 
Equity  having  thus  interposed  in  favor  of  the  mortgagor, 
interposed  again  in  favor  of  the  mortgagee,  by  entertaining 
his  suit  to  foreclose  the  mortgagor's  equity  of  redemption  ; 
otherwise,  the  tenure  of  the  mortgagee  after  default  would 
be  continuously  menaced  by  the  mortgagor's  right  to  redeem 
at  any  moment. 

Equitable  liens  furnish  an  instance  of  rights  that  are  purely 
of  equitable  conception.     The  lien  of  a  vendor  on  the  land 

'  The    creative  and    progressive  The  doctrines  of  equity  are  pro-, 

capacity  of  tlie  equity  branch  of  gressive,   refined,   and    improved  ; 

the  law  is  thus  stated  by  a  distin-  and  if  we  want  to  know  what  the 

guished  equity  judge  :   "It  must  rules  of  equity  are,  we  must  look, 

not  be  forgotten,  that  the  rules  of  of    course,    rather    to     the     more 

courts  of  equity  are  not,  like  the  modern,   than    to    the    more    an- 

rules  of  the  common  law,  supposed  cient    cases."       Sir    George    Jes- 

to  have  been  established  from  time  sel,  M.  R.,  in  re  Hallett's  Estate, 

immemorial.     It  is  perfectly  well  Knatchbull  v.  Hallett,    13  Ch.    D. 

known  that  they  have  been  estab-  710. 
Ijshed  from  time  to  time.     .     .    . 


123  EQUITY  PROCEDURE.  §§140-141 

sold,  for  unpaid  purchase-money,  is  an  example  of  equitable 
liens,  enforceable  only  in  a  court  of  equity. 

Specific  performance  is  a  familiar  example  of  equitable 
remedy  for  breach  of  a  legal  right,  on  the  ground  that  the 
only  legal  remedy,  in  damages,  is  not  full  and  adequate. 
And  injunction  is  an  equitable  remedy  often  resorted  to  for 
the  protection  of  legal  rights,  on  the  ground  that  the  law 
does  not  furnish  an  adequate  remedy.  On  this  ground, 
equity  will  restrain  waste,  trespass,  nuisance,  and  the  aliena- 
tion of  property. 

It  will  be  observed,  therefore,  that  the  general  field  of 
equity  jurisdiction  embraces  (1)  causes  wherein  the  title  or 
the  right  involved  is  one  recognized  only  in  equity,  and  (2) 
causes  wherein  the  right  involved  is  a  legal  right,  and  is 
without  adequate  protection  at  law. 

140.  Equitable  Remedies. — Of  the  remedies  afforded  by 
courts  of  equity,  some  are  purely  ancillary  and  provisional. 
Such,  for  example,  are,  the  appointment  of  a  receiver  to  take 
charge  of  property  pending  a  litigation  concerning  it ;  bills 
of  discovery,  whereby  a  party  is  compelled  to  make  disclos- 
ures under  oath  ;  and  bills  to  take  and  perpetuate  testimony 
as  to  a  matter  likely  to  be  in  litigation. 

Some  equitable  remedies  are  purely  preventive.  For  ex- 
ample, the  writ  of  7ie  exeat  regno,  to  restrain  a  defendant 
from  evading  the  jurisdiction ;  injunctions,  to  prevent  a 
threatened  injury,  or  to  restrain  an  actual  wrong-doer ;  and 
bills  quia  timet  to  guard  against  future  and  contingent  in- 
juries. 

Other  remedies  are  in  their  nature  final,  affording  ultimate 
relief.  Of  this  class  are,  the  partition  of  lands,  the  specific 
performance  of  contracts,  the  reformation  and  cancellation 
of  contracts,  bills  for  account,  partnership  bills,  creditors' 
bills,  and  the  instances  in  which  a  court  of  equity  will,  vir- 
tute  officii,  exercise  a  guardianship  over  the  property  and 
persons  of  infants,  idiots,  and  lunatics. 

141.  Foundation  Principles  of  Equity. — Something  has 
been  shown  of  the  nature  and  the  subjects  of  equity  jurisdic- 
tion, and  of  tlie  remedies  which  it  supplies ;  and  some  of  the 
necessities   that   called  for  this  subsidiary   juridical  system 


§  141  HISTORY  OF  PLEADING.  124 

have  been  briefly  pointed  out.  Equity  recognizes  titles  and 
rights  not  recognized  at  law,  and  it  supplies  remedies  not  fur- 
nished at  law  ;  but  it  does  not  exercise  an  arbitrary  jurisdic- 
tion. There  are  well  defined  principles  and  doctrines  under- 
lying and  permeating  the  whole  system,  largely  drawn  from 
the  essential  truths  of  morality,  and  based  upon  the  enduring 
principles  of  justice  and  right.  Cases  of  new  impression,  as 
they  arise,  are  decided  according  to  the  principles  upon  which 
former  cases  have  been  decided,  and  thus  the  application  of 
those  principles  is  illustrated  and  enlarged  ;  but  the  priu' 
ciples  themselves  are  fixed  and  certain. 

These  underlying  principles  and  doctrines — embodied,  for 
the  most  part,  in  the  maxims  of  equity — are  the  real  prin- 
cipia  of  the  system ;  they  are  the  never-failing  source  of  its 
particular  rules,  they  distinguish  the  system,  they  give  to  it 
character  and  coherence,  they  measure  its  jurisdiction,  and 
are  inseparable  from  its  proceduret 


CHAPTER  XIII. 

CONDUCT  OF  A  SUIT  IN  AN  EQUITY. 

142.  Origin  and  Nature  of  Equity  Procedure. — Under 

the  English  constitution,  the  king  is  regarded  as  the  fount- 
ain of  justice ;  and  from  t^'-^ie  immemorial  it  was  a  preroga- 
tive of  the  king  to  administer  justice  to  his  subjects.  He  was 
bound  to  administer  justice  according  to  law  ;  but,  in  the  ab- 
sence of  legislative  direction,  was  at  liberty  to  employ  such 
system  of  procedure  as  he  chose.  When  the  equity  jurisdic- 
tion arose,  to  supply  the  deficiencies  in  the  common  law,  it 
was  regarded,  in  theory,  as  the  exercise  of  that  part  of  the 
king's  judicial  prerogative  that  had  never  been  delegated  to 
the  common-law  courts  ;  and  the  delegation  of  this  reserved 
judicial  power  to  the  High  Court  of  Chancery,^  carried  with 
it  the  right  to  employ  such  mode  of  procedure  as  might  be 
adapted  to  the  dispensation  of  justice  in  this  new  and  extra- 
ordinary jurisdiction.  Accordingly,  the  mode  of  procedure 
that  was  so  adopted,  and  that  graduall}^  grew  up  in  the  court 
of  chancery,  followed  in  part  the  analogy  of  the  common-law 
procedure,  and  in  part  the  procedure  then  in  use  in  the  Eng- 
lish Ecclesiastical  Coui'ts,  which  was  modeled  upon  that  of 
the  Roman  Oivil  Law. 

In  all  that  related  to  the  formal  conduct  of  an  action,  there 

'  This  court,  having  both  com-  Chancery.     In  the  United  States, 

mon-law  and  equity  %risdiction,  the     jurisdiction    of    the    federal 

is  of  very  ancient  institution,   and  courts  extends  to   "cases  in  law 

is  presided  over  by  the  Lord  Chan-  and  equity,"  and  these  courts  sit  as 

cellor,  assisted  by  the  Master  of  the  courts  of  law  or  as  couils  of  equity, 

Rolls,  and  three  Vice-Chancellors.  according  to  the  nature  of  the  case. 

These  four  subordinate  judges  sit  In   some  of    the    states,    distinct 

in  separate    courts,   and  exercise  courts  of  chancery  are  established  ; 

their  jurisdiction  severally  ;    but,  but  in  most  of  them  the  two  juris- 

together  with  the  Lord  Chancellor,  dictions  are  exercised  bv  the  same 

they  constitute  the  High  Court  ot  tnbunai. 

I2i> 


§§  143-144  HISTOILY  OF  PLEADING.  1  (J 

was  a  wide  difference  between  iiie  procedure  in  the  ecclesias- 
tical courts  and  the  courts  of  common  law.  In  the  former, 
the  proceedings  were  mainly  conducted  in  open  court,  and 
the  court  exercised  an  active  supervision  and  diiection  of  the 
proceedings  as  they  were  in  progress.  In  the  latter,  the  pro- 
ceedings were  chiefly  conducted  out  of  court,  by  the  attorneys, 
and  the  court  interposed  only  upon  the  motion  of  one  paity 
and  notice  to  the  other.  In  the  one  court,  no  pleading  could 
be  received  without  the  approval  of  the  court,  first  obtained  ; 
in  the  other  court,  the  pleadings  were  filed  or  served  without 
permission,  and  their  sufficiency,  if  questioned,  was  thereafter 
determined  by  the  court.  In  these  and  some  other  formal 
matters,  chancery  followed  the  common  law.  It  followed  the 
ecclesiastical  procedure  in  its  mode  of  taking  the  testimony  of 
witnesses,  in  requiring  each  party  to  submit  to  an  examina- 
tion under  oath  by  his  adversary,  and  in  particular  it  followed 
the  ecclesiastical  courts  in  adjudicating  upon  the  duties  of 
litigants,  and  compelling  performance  thereof. 

143.  Commencement  of  Suit  in  Equity. — A  suit  in 
equity  is  commenced  by  preferring,  to  the  court  having  juris- 
diction of  the  cause  and  of  the  parties,  a  petition  in  writing, 
setting  forth  the  facts  and  circumstances  on  which  the  claim 
ior  relief  is  founded,  and  praying  for  such  relief  as  the  nature 
of  the  case  may  require,  or  as  the  petitioner  may  be  entitled  to. 
This  petition,  if  preferred  by  an  individual,  is  called  a  bill ;  if 
preferred  by  the  government,  it  is  called  an  information.  The 
plaintiff,  if  an  individual,  styles  himself,  in  the  bill,  "your 
orator ;  "  if  the  suit  be  instituted  by  the  government,  the  in- 
formation is  exhibited  by  an  officer  of  the  government,  or  on 
tlie  relation  of  an  individual,  called  the  "  relator." 

144.  Appearance  of  the  Defendant. — Upon  the  filing  of 
the  bill,  the  plaintiff  files  with  the  proper  officer  of  the  court 
a  prcecipe,  which  is  a  written  command  to  the  officer  to  issue 
the  process  of  the  court  for  the  appearance  of  the  defendant. 
Thereupon  there  issues  to  the  defendant  a  subpoena,  which 
is  a  mandatory  writ,  under  the  seal  of  the  court,  requiring 
the  defendant  to  appear  on  a  day  certain,  and  answer  the 
bill.  Appearance  is  the  formal  proceeding  by  which  the  de- 
fendant submits  himself  to  the  jurisdiction  of  the  court.     For- 


127  EQUITY  PROCEDURE.  §  145 

merly,  if  the  defendant  failed  to  appear  in  obedience  to  the 
command  of  the  subpoena,  there  issued  against  him  a  long 
chain  of  process,  ending  in  a  sequestration  of  his  property,  f  or 
the  purpose  of  compelling  an  appearance  ;  but  in  more  modern 
times  an  actual  appearance  is  dispensed  with,  and  a  decree 
pro  confesso  may  be  rendered  against  an  absconding  or  con- 
tumacious defendant. 

It  will  be  observed  that  the  commencement  of  a  suit  in 
equity  differs  materially  from  the  procedure  of  both  the  civil 
law  and  the  common  law  ;  for  in  each  of  these  systems  the 
appearance  of  the  defendant  must  be  effected  before  tlie 
plaintiff  can  file  his  first  pleading,  while  equity  pursues  the 
more  logical  theory  of  requiring  the  plaintiff  to  make  formal 
complaint  of  the  defendant  before  he  may  use  the  process  of 
the  court  to  subject  him  to  its  jurisdiction. 

145.  Of  Defenses  in  Equity. — The  defendant,  having  ap- 
peared, may  defend  himself  against  the  allegations  of  the 
plaintiff's  bill  by  disclaimer,  by  demurrer,  by  plea,  by  answer, 
and  by  cross-bill. 

If  the  defendant  has  no  interest  in  the  subject  concerning 
which  the  suit  is  brought,  he  may  answer  the  plaintiff's  bill 
by  a  simple  disclaimer,  which  is  a  formal  renunciation  of  all 
claim  in  or  to  the  subject  of  the  action.  But  a  defendant 
may  not  avoid  an  alleged  liability  by  mere  disclaimer. 

If  it  appear,  upon  the  face  of  the  bill,  that  the  plaintiff  has 
no  right  to  require  the  defendant  to  answer,  objection  should 
be  made  by  demurrer  to  the  bill,  or  to  some  part  thereof. 

If  there  are  facts,  not  stated  in  the  bill,  which  show  that 
the  defendant  should  not  be  required  to  answer  the  bill, 
these  facts  may  be  set  up  by  a  plea,  which  is  a  special  answer, 
relying  upon  one  or  more  facts  as  a  reason  why  the  action, 
should  be  dismissed,  delayed,  or  barred. 

If  the  defendant  neither  disclaims,  nor  demurs,  nor  pleads, 
he  must  answer.  An  answer  in  chancery  may  be  a  denial, 
or  a  statement  of  additional  facts,  or  it  may  be  both.  And  a 
defendant  may,  by  cross-bill,  ask  for  discovery  or  for  re- 
lief, or  for  both,  against  the  plaintiff,  or  against  a  co-defend- 
ant. 

The  cause,  as  in  an  action  at  law,  may  proceed  to  trial  upon 


§§  146-147  HISTORY  OF  PLEADING.  128 

the  bill  and  the  answer  or  plea,  or  a  formal  replication  may 
sometimes  be  tiled. 

146.  Tiie  Witnesses,  the  Hearing,  and  the  Decree. — 

In  courts  of  law,  witnesses  are  examined  ore  tenus,  in  open 
court ;  but  in  chancery,  the  examination  is  conducted  in 
private,  and  upon  interrogatories  in  writing,  previously 
framed.  But  this  practice  has  been  greatly  modified  in  this 
country  ;  and  in  many  jurisdictions  witnesses  are  now  exam- 
ined in  courts  of  chancery  as  they  are  in  courts  of  law. 

The  cause  being  ready,  and  having  been  regularly  set  down 
for  hearing,  the  parties  appear  by  their  counsel,  and  the  hear- 
ing proceeds.  The  counsel  state,  briefly,  the  nature  of  the 
case,  and  the  points  in  issue  ;  the  testimony  of  the  witnesses 
is  read,  and  the  arguments  of  counsel  are  heard  ;  whereupon, 
the  court  announces  its  decree,  which  is  the  judgment  or 
order  of  the  court,  determining  the  rights  of  the  parties  as  to 
all  matters  submitted  upon  the  hearing. 

A  decree  is  final  when  it  determines  the  whole  merits  of 
the  cause,  and  reserves  or  leaves  no  matters  therein  for  the 
future  consideration  of  the  court  ;  it  is  interlocutor;!/,  when  it 
is  made  in  the  course  of  a  cause,  and  does  not  finally  dispose 
of  it.  An  order  appointing  a  receiver,  or  directing  a  sale,  is 
interlocutory. 

147.  Of  the  Execution  of  Decrees. — It  is  a  general  prin- 
ciple, that  courts  must  have  power  to  carry  their  judgments 
and  decrees  into  effectual  operation ;  otherwise,  courts  would 
be  of  no  avail  for  the  protection  of  rights,  and  litigation 
would  be  a  fruitless  ceremony.  For  this  reason,  a  court  of 
equity  will  not  entertain  a  suit  wherein  it  can  not  render  a 
decree  that  it  may  enforce.  For  example,  in  an  action  by 
the  vendee  of  land,  for  specific  performance,  if  the  defendant 
has,  before  suit,  conveyed  the  land  to  a  bona  fide  purchaser 
for  value,  and  without  notice,  the  court  will  not  decree  per- 
formance. For  a  like  reason,  performance  of  a  contract 
for  personal  services,  or  for  the  construction  of  a  build- 
ing, will  not  be  decreed.^  If  a  decree  in  chancery  be 
in  personam,    the    regular   course   is,    to    issue    a    writ    of 

*  3  Pom.  Eq.  Jur.  1405,  and  notes. 


_129  EQUTlv:  PROCEDURE.  §147 

execution.  This  writ,  which  mast  be  served  personally 
on  the  defendant,  recites  the  decree,  and  commands  per- 
formance of  it.  If  the  defendant  refuse  to  perform  the 
decree,  he  may  be  proceeded  against  as  for  contempt,  and  a 
writ  of  sequestration  may  issue.  If  the  decree  be  in  rem,  as 
for  the  delivery  of  lands,  it  is  usual,  after  service  of  execu- 
tion and  attachment,  to  award  an  injunction  to  give  the 
plaintiff  possession. 

Formerly,  a  decree  in  chancery,  being  a  personal  command 
to  the  defendant,  and  requiring  his  personal  act  to  carry  it 
into  effect,  did  not  operate  ex  propria  vigors  to  create  or 
to  vest  a  right  or  title  ;  but  this  ancient  doctrine  has  very 
generally  been  modified,  so  that  in  all  cases  requiring  some 
specific  act  to  be  done  by  the  defendant, — as,  for  example, 
the  conveyance  of  title  to  land, — the  decree  is  made  to  oper- 
ate of  itself  as  such  act  of  the  defendant,  or  the  decree  directs 
that  the  thing  required  of  the  defendant  be  done  by  an  officer 
of  the  court,  acting  for  him. 
9 


CHAPTER  XIV. 

THE  PLEADINGS  IN  EQUITY. 

148.  General  Character  of  Pleadings. — In  early  times, 
when  applications  for  equitable  relief  were  comparatively 
rare,  the  pleadings  were  very  brief,  and  were  simple  and 
informal  in  structure.  As  the  business  increased  in  volume 
and  importance,  the  courts  of  chancery,  untrammeled  by 
the  technical  rules  of  the  common  law,  and  proceeding  upon 
the  broad  equities  of  the  case,  naturally  adopted  a  procedure 
characterized  by  the  same  breadth  and  adaptation  that  distin- 
guish the  equity  jurisdiction.  The  natural  tendency  was,  to 
tolerate  a  full  and  indiscriminate  statement  of  facts,  opera- 
tive and  evidential,  not  always  excluding  a  statement  of  the 
law.  This  liberality  led  to  a  cumbersome  prolixity  and  a 
perplexing  confusion  in  the  pleadings ;  and,  although  they 
have  gradually  been  subjected  to  rules  and  formal  require- 
ments for  securing  certainty  and  uniformity,  they  have 
always  been  free  from  those  niceties  and  subtleties  which 
characterize  the  pleadings  at  common  law. 

149.  Of  the  Bill  in  Equity. — The  pleadings  in  equity 
consist,  regularlj^  of  bill,  demurrer,  plea,  and  answer ;  and  to 
these  is  sometimes  added  a  replication. 

A  bill  in  equity  has  two  general  purposes ;  the  statement 
of  a  right  to  relief,  and  the  examination  of  the  defendant 
upon  oath.  In  its  most  technical  and  artificial  form,  the  bill 
consisted  of  the  following  nine  parts  : — 

I.  The  Address. — In  England,  the  bill  is  addressed  to  the 
Lord  Chancellor;  in  the  United  3;  tes,  to  the  judges  of  the 
court  in  which  the  suit  is  brought.  For  example,  "  To  the 
Honorable,  the  Judges  of  the  Circuit  Court  of  the  United 

States,   within   and  for    the   district   of  ,  sitting   in 

Equity." 
130 


131  EQUITY  PROCEDURE.  §  149 

II.  The  Introduction. — This  states  the  name  and  de- 
scription of  the  plaintiff,  and  the  character  in  which  he  sues, 
whether  in  his  own  right,  or  en  autre  droit.  The  object  is 
to  fix  the  identity  and  the  locus  of  the  parties,  and  to  facili- 
tate a  resort  to  the  plaintiff  for  compliance  with  any  order 
that  may  be  made  upon  him  during  the  progress  of  the  suit. 
In  the  courts  of  the  United  States,  in  cases  where  the  juris- 
diction depends  upon  the  citizenship  of  both  parties,  their 
citizenship  should  be  stated  in  the  introduction. 

III.  The  Premises. — This  part  of  the  bill,  called  also  the 
stating  part  thereof,  contains  a  full  statement  of  the  operative 
facts  showing  a  right  of  action  in  the  plaintiff,  against  the  de- 
fendant. It  is  upon  this  part  of  the  bill  that  the  plaintiff 
must  ground  his  right  to  relief.  It  should  state  matters  of 
which  the  court  has  jurisdiction,  and  which,  if  true,  en- 
title the  plaintiff  to  the  interposition  of  the  court  in  his 
behalf. 

lY.  The  Confederacy. — This  part  charges  that  the  de- 
fendant combined  and  confederated  with  divers  other  persons, 
to  plaintiff  unknown,  to  injure  and  defraud  the  plaintiff ; 
and  it  prays  that  these  persons,  when  known,  may  be  made 
defendants  to  the  bill.  This  requisite  of  a  bill  probably  arose 
from  the  mistaken  notion  that  new  parties  could  not  be  added 
by  amendment,  and  that  an  allegation  of  confederacy  would, 
of  itself,  sustain  the  jurisdiction  of  the  court.  But  as  there 
never  was  a  time  when  such  amendment  could  not  be  made, 
and  as  a  mere  confederacy  was  not  sufficient  to  give  a  court 
of  equity  jurisdiction,  it  would  seem,  upon  principle,  that 
this  requirement  has  always  been  useless  and  nugatory. 

y.  Charging  Part. — This  part  alleges  the  pretenses 
which  it  is  supposed  the  defendant  will  set  up  as  a  defense, 
and  then  charges  other  matter  to  disprove  or  avoid  them. 
Formerly,  tlie  answer  of  the  defendant  was  followed  by  rep- 
lication and  rejoinder.  These  pleadings  were  in  most  cases 
dispensed  with,  and  instead  of  leaving  the  case  to  be  further 
developed  by  evidence,  and  without  pleadings,  the  plaintiff 
was  allowed  either  to  amend  his  bill  after  answer,  or  to  an- 
ticipate the  defense,  and  in  this  way  expedite  the  case  by 
incorporating  in  this  part  of  his  bill  what  was  properly  matter 


§  149  HISTORY  OF  PLEADING.  132 

for  reply.     This  is  directly  contrary  to  the  common-law  rule 
that  defenses  must  not  be  anticipated. 

VI.  Averment  of  Jurisdiction. — This  clause  avers  that 
the  acts  complained  of  are  contrary  to  equity,  that  the  plaint- 
iff is  remediless  at  law,  and  can  obtain  relief  only  in  a  court 
of  equity.  But  as  the  jurisdiction  of  the  court  always  de- 
pends upon  the  nature  of  the  case  as  disclosed  by  the  facts 
alleged,  and  not  in  any  sense  upon  this  mere  assertion  of  a 
conclusion,  this  part  of  the  bill  serves  no  purpose  whatever, 
and  may,  in  any  case,  be  omitted. 

VII.  Interrogating  Part. — The  defendant  is  required, 
without  interrogatories,  to  answer  all  the  matters  stated  and 
charged  in  the  bill.  But  to  guard  against  evasiveness,  and  to 
obtain  direct  and  full  answers,  the  practice  of  inserting  specific 
interrogatories  grew  up.  These  interrogatories  do  not  en- 
large the  duty  of  the  defendant,  for  without  them  he  must 
answer  all  the  allegations  and  charges  in  the  bill,  and  he  is 
bound  to  answer  the  interrogatories  only  so  far  as  they  are 
based  upon  such  allegations  and  charges.  This  part  of  the 
bill  is  purely  subservient  to  its  general  purpose  to  require 
the  defendant  to  answer  under  oath  ;  and  it  is  important  only 
as  a  means  for  obtaining  a  response  as  to  collateral  and 
minute  circumstances,  which,  however  material,  the  defend- 
ant might  otherwise  purposely  evade,  or  honestly  suppose  he 
was  not  called  upon  to  answer. 

VIII.  Prayer  for  Relief. — The  defendant  is  entitled  to 
know  upon  what  facts  the  plaintiff  relies  for  relief,  in  order 
that  he  may  prepare  to  meet  them  ;  and  for  the  same  reason, 
he  is  entitled  to  know  what  use  the  plaintiff  intends  to  make 
of  his  alleged  facts.  To  this  end,  every  bill  for  relief  is  re- 
quired to  contain  a  prayer  for  relief.  This  prayer  is  special, 
stating  the  particular  relief  sought ;  or  general,  asking  such 
relief  as  the  party  may  be  entitled  to.  Tlie  use  of  the  gen- 
eral prayer  is,  that  if  the  plaintiff  has,  in  his  special  prayer, 
mistaken  the  relief  to  which  he  is  entitled  in  the  case,  the 
court  may,  under  his  general  prayer,  grant  him  such  relief  as 
he  may  be  found  entitled  to.  The  two  forms  are  therefore 
generally  combined;  in  fact,  it  is  never  prudent  or  safe  to 
omit  a  prayer  for  general  relief.     If  the  plaintiff  is  in  doubt 


133  EQUITY  PROCEDURE.  §150 

as  to  the  proper  relief  in  the  case,  he  may,  and  should^ 
frame  his  special  prayer  in  the  alternative.  And  if  any 
special  order,  such  as  injunction,  or  a  writ  of  ne  exeatj 
is  desired  pending  the  suit,  it  should  be  specially  prayed 
for. 

Where  it  does  not  appear,  from  the  facts  stated  and  from 
the  prayer  for  relief,  upon  what  legal  grounds  the  plaintiff 
rests  his  claim,  such  legal  grounds  should,  for  the  reason  al- 
ready given,  be  specially  stated.  For  example,  if  a  waiver 
of  some  right  be  relied  upon,  it  is  not,  ordinarily,  sufficient 
merely  to  state  the  facts  constituting  the  waiver ;  the  use  to 
be  made  of  such  facts,  if  it  is  not  apparent  from  the  state- 
ment of  the  facts,  must  be  shown  by  alleging  that  the  right 
has  been  thereby  waived.^ 

IX.  Prayer  for  Process. — The  bill  concludes  with  a 
prayer  that  a  writ  of  subpoena  may  issue,  requiring  the  de- 
fendant to  appear  and  answer  the  matters  alleged  against  him, 
and  abide  the  determination  of  the  court  thereon.  This 
prayer  for  process  should  state  the  names  of  all  the  defend- 
ants, designating  those  under  age,  or  under  guardianship. 

Every  bill  is  required  to  be  signed  by  the  plaintiff's  solic- 
itor, as  a  security  that  no  impertinent  or  improper  matter  is 
contained  therein.  Formerly,  the  court  examined  tlie  bill 
before  it  was  filed,  but  with  the  increase  of  business  this  be- 
came impracticable,  and  the  matter  was  left  to  the  honor  of 
the  solicitor. 

150.  The  Essentials  of  a  Bill. — It  is  apparent  that  a  bill 
containing  all  the  nine  parts  just  described  would  contain 
much  that  is  not  essential  in  a  pleading  invoking  the  interpo- 
sition of  a  court  of  justice.  In  fact,  the  use  of  some  of  these 
parts  has  always  been  optional,  and  some  of  them  have  been 
dispensed  with  by  the  rules  of  practice  in  courts  of  equity  in 
England  and  in  the  United  States. 

Upon  principle,  the  essential  parts  of  a  bill,  so  far  as  it  is 
a  mere  pleading,  are  only  two — a  statement  of  facts,  and 
a  prayer  for  relief ;  all  the  other  parts  are  formal,  or  pre- 
cautionary, or  superfluous.        The    statement  of    facts,    by 

\/ 
1  Langdell's  Eq.  PI.  61,  62. 


§g  151-152  HISTORY  OF  PLEADING.  134, 

setting  out  the  circumstantial  relation  of  the  parties,  shows  at 
once  a  right  of  action,  the  jurisdiction  of  the  court,  and  what 
the  defendant  is  to  answer ;  and  the  prayer  for  relief  advises 
both  the  court  and  the  defendant  as  to  what  the  plaintiff 
seeks  to  attaim  by  the  suit.^  So  .far  as  the  bill  is  to  operate 
as  an  examination  of  the  defendant,  the  charging  and  inquisi- 
tive parts  thereof  are  essential ;  but  this  use  of  the  bill  is 
purely  a  matter  of  practical  expediency. 

The  bill  is  not  required  to  be  sworn  to ;  but  the  answer 
thereto,  being  in  part  responsive  to  interrogatories,  is  required 
to  be  under  oath. 

151.  Original  Bills. — Bills  vary  in  their  form  and  denom- 
ination, according  to  the  purpose  for  which  they  are  used. 
The  most  general  division  is  into  original  bills,  and  Mils  not 
original ;  and  to  this  division  is  sometimes  added,  bills  in  the 
nature  of  original  bills. 

Original  bills  are  those  filed  in  the  commencement  of 
a  suit.  They  relate  to  some  matter  not  before  litigated  be- 
tween the  parties,  and  present  it  for  the  consideration  of  the 
court  for  the  first  time.  Original  bills  are  again  divided  into 
such  as  pray  for  relief,  and  such  as  do  not  pray  for  relief. 
In  a  general  sense,  every  bill  in  equity  asks  relief ;  but  tech- 
nically, only  such  as  seek  an  adjustment  of  the  matters  there- 
in complained  of  are  so  called. 

152!.  Bills  for  Relief. — Original  bills  praying  for  relief 
are  these  :  Bills  praying  for  the  order  or  decree  of  the  court 
touching  some  right  claimed  by  the  plaintiff,  in  opposition  to 
some  right  claimed  by  the  defendant,  or  touching  some  vio- 
lation of  the  plaintiff's  right ;  such  are,  bills  to  redeem,  bills 
of  foreclosure,  bills  for  specific  performance,  for  partition, 
for  contribution,  and  for  cancellation.  To  this  class  belong 
bills  of  interpleader,  wherein  the  plaintiff  prays  only  that  the 
defendants,  each  of  whom  claims  the  same  debt  or  duty  from 
the  plaintiff,  may  be  required  to  interplead,  that  the  court 
may,  for  the  protection  of  the  plaintiff,  determine  to  which 
of  the  claimants  he  shall  render  that  which  he  admits  he 
owes. 

•  Lang.  Eq.  PI.  55. 


135  EQUITY  PROCEDURE.  §153 

Of  this  class  are  bills  of  certiorari^  praying  for  the  re- 
moval of  a  cause  pending  in  an  inferior  court,  to  the  superior 
court  wherein  the  bill  is  filed.  Such  bill  proceeds  upon  the 
suggestion  that  the  inferior  court,  by  reason  of  its  limited 
jurisdiction,  can  not  do  full  justice  in  the  case.  The  prayer 
is  for  a  writ  of  certiorari,  directed  to  the  inferior  court,  re- 
quiring it  to  certify  the  proceedings  in  the  case  to  the  supe- 
rior court.  If  the  suggestion  for  removal  is  not  sustained  in 
the  superior  court,  a  writ  of  procedendo  issues,  directing  the 
inferior  court  to  proceed  in  the  cause.  These  writs,  of 
certiorari  and  procedendo,  are  not  peculiar  to  the  court  of 
chancery. 

153.  Bills  Not  for  Relief. — Original  bills  not  prajang  for 
relief  are  these :  (1)  Bills  to  perpetuate  testimony,  which 
pray  that  the  testimony  of  witnesses  may  be  taken  with  ref- 
erence to  a  matter  not  in  litigation,  but  that  may  here- 
after be  in  litigation.  Such  bills  must  show  a  right  of 
the  plaintiff  in  the  subject  with  reference  to  which  th^ 
testimony  is  to  be  taken ;  an  interest  in  tlie  defendant 
to  contest  the  same ;  and  some  ground  for  perpetuating  the 
evidence ;  as,  that  the  matter  in  question  can  not  at  once 
be  made  the  subject  of  judicial  investigation.  (2)  Bills 
to  take  testimony  de  bene  esse,  which  are  to  take  testi- 
mony in  an  action  at  law,  already  pending,  when  there 
is  cause  to  fear  that  by  reason  of  the  age,  or  infirmity,  or  in- 
tended absence  of  a  witness,  his  testimony  may  otherwise  be 
lost  before  the  time  of  trial.  Bills  to  perpetuate  testimony 
can  be  resorted  to  only  when  no  present  suit  can  be  main- 
tained ;  while  bills  to  take  testimony  de  bene  esse  can  be 
used  only  in  aid  of  a  pending  action,  and  maj^  be  filed  by 
either  party  to  such  action.  (3)  Bills  of  discovery,  which 
pray  for  the  disclosure  of  facts  resting  within  the  knowl- 
edge of  him  against  whom  the  bill  is  exhibited,  or  of  deeds, 
writings,  or  other  things,  in  his  custody  or  power,  and  material 
to  enable  the  party  exhibiting  the  bill  to  prosecute  or  defend 
an  action  at  law,  between  the  same  parties,  already  pending, 
or  about  to  be  brought. 

For  a  long  time,  a  bill  of  discovery  was  the  only  means  foe 
obtaining  the  testimony  of  parties  to  an  action  at  law.     But 


§§154-155  HISTORY  OF  PLEADING.  136 

since  parties  are  now  generally  allowed  to  testify  in  their  own 
Ijeluilf,  and  may  be  required  to  testify  in  behalf  of  tlieir  ad- 
versaries ;  and  since  the  adoption  of  the  summary  and  inex- 
pensive method  of  taking  the  testimony  of  witnesses  by  writ- 
ten depositions,  these  cumbrous  auxiliary  proceedings,  by 
bill  not  for  relief,  once  so  necessary  for  the  attainment  of 
justice,  have  been  practically  superseded,  if  not  expressly 
abolished,  both  in  England  and  in  the  United  States. 

154.  Bills  Not  Original. — During  the  progress  of  a  suit, 
there  may  be  such  change  in  the  relation  of  the  parties, 
either  before  decree,  or  after  decree  and  before  execution 
thereof,  as  to  require  the  filing  of  an  auxiliary  bill,  setting 
forth  such  change.  If  such  secondary  bill  merely  add  new 
incidents  to  a  still  subsisting  relation,  it  is  supplemental ;  if 
it  state  a  new  relation,  between  new  parties,  it  is  a  revivor. 

A  supplemental  bill  is  an  addition  to  an  original  bill,  to 
supply  some  defect  in  it  or  in  the  proceedings  thereon,  not 
curable  by  amendment,  or  to  allege  facts  occurring  since  the 
filing  of  the  original  bill. 

A  bill  of  revivor  is  to  renew  and  continue  the  original  bill, 
when,  by  death  or  marriage  of  a  party,  the  suit  has  been  abated. 
A  secondary  bill  may  be  both  a  revivor  and  a  supplement, 
reviving  the  suit,  and  at  the  same  time  supplying  defects 
or  adding  new  events. 

155.  Bills  in  the  Nature  of  Original  Bills. — Among 
secondary  bills  are  some  of  such  nature  as  to  be,  strictly, 
original  bills,  yet  the  injuries  they  complain  of  proceed  from 
a  former  or  a  pending  suit.  Bills  of  this  kind  are  numerous, 
and  only  a  few  of  them  will  be  described. 

A  cross-bill  is  one  exhibited  by  a  defendant,  against  the 
plaintiff,  or  a  co-defendant,  in  a  suit  pending,  seeking  dis- 
covery touching  matters  in  the  original  bill,  or  asking  relief 
founded  on  some  collateral  claim  against  the  plaintiff  or  a 
co-defendant.  It  frequently  happens  that  in  no  other  way 
can  all  the  matters  in  dispute  be  brought  fully  before 
the  court,  and  the  court  be  enabled  to  make  a  complete 
decree. 

Bills  of  review  are  in  the  nature  of  writs  of  error.  They 
are  brought  to  have  the  decree  of  the  court  reviewed,  modi- 


137  EQUITY  PROCEDURE.  §  156 

fied,  or  reversed,  on  account  of  error  in  the  proceedings,  or 
because  of  newly  discovered  evidence. 

To  this  class  belong  bills  to  impeach  a  decree  on  the 
ground  of  fraud,  bills  to  suspend  a  decree,  and  bills  to  carry 
a  decree  into  operation. 

156.  Demurrer  to  the  Bill. — The  defendant  may  respond 
to  the  bill  in  two  ways ;  he  may  contest  the  suit,  or 
he  may  show  reason  why  he  is  not  called  upon  to  contest. 
If  he  submits  to  contest  the  suit,  he  files  an  answer  to  the 
bill ;  he  shows  cause  for  not  answering,  by  demurrer  or  by 
plea.  While  both  demurrer  and  plea  are  used  to  avoid 
answering  the  bill,  they  are  based  upon  entirely  different 
grounds  ;  a  demurrer  resting  upon  the  apparent  insufficiency 
of  the  bill,  and  a  plea  resting  upon  new  facts  alleged  to  show 
that  the  suit  should  be  dismissed,  delayed,  or  barred.  Both 
demurrers  and  pleas  were  borrowed  from  the  common  law. 

It  has  been  shown  that  an  original  bill  for  relief  has  two 
objects — discovery,  and  relief.  A  demurrer  assumes  the  facts 
alleged  in  the  bill  to  be  true,  and  it  questions  their  suffi- 
ciency to  entitle  the  plaintiff  to  call  upon  the  defendant  for 
discovery,  or  for  relief. 

The  effect  of  a  demurrer  in  equity  is  very  different  from 
its  effect  at  common  law.  When  a  defendant  demurs  to  a 
declaration,  he  prays  judgment  upon  the  plaintiff's  claim  •, 
and  the  plaintiff,  by  joinder  in  demurrer,  prays  the  like  judg- 
ment. The  case  being  thus  at  issue,  the  decision  is  always 
followed  by  judgment,  unless  the  defeated  party  obtains 
leave  to  amend  or  to  plead.  But  when  a  defendant  demurs 
to  a  bill,  he  prays  judgment,  not  upon  the  plaintiff's  claim, 
but  whether  he  must  answer  the  bill.  The  decision  of  the 
demurrer  is  not  followed  by  a  decree  ;  for  all  that  is  decided 
is,  that  the  defendant  is,  or  is  not,  bound  to  answer.  If  the 
demurrer  be  overruled,  the  defendant  must  plead  or  answer; 
if  it  be  sustained,  and  the  plaintiff  does  not  obtain  leave  to 
amend,  the  defendant  may  move  to  dismiss  the  bill  for  want 
of  prosecution. 

The  theory  of  this  distinction  is,  that  a  demurrer  to  a  dec- 
laration admits  the  facts  alleged,  whereas  a  demurrer  to  a  bill 
only  assumes  the  truth  of  the  bill,  pro  re  nafa.     In  the  one 


§  157  HISTORY  OF  PLEADING.  I33 

case,  the  facts  are  before  the  court  for  its  decision  as  to 
plaintiff's  I'ight  to  relief ;  in  the  other  case,  an  assumed  state 
of  facts  is  before  the  court  for  its  decision  as  to  the  defend- 
ant's obligation  to  proceed  in  the  suit.  The  form  of  de- 
murrer to  a  bill  shows  that  both  the  admission  of  facts  and 
the  submission  of  the  case  are  qualified  and  provisional. 
The  usual  form  is  as  follows  :  "  This  defendant,  by  protesta- 
tion, not  confessing  any  of  the  matters  in  and  by  said  bill 
complained  of  to  be  true  in  manner  and  form  as  the  same  are 
set  forth,  says  that  he  is  advised  that  there  is  no  matter  or 
thing  in  said  bill,  good  and  sufficient  in  law,  to  call  this  de- 
fendant to  account  in  this  honorable  court  for  the  same. 
[Stating  here  the  grounds  of  the  demurrer.]  Wherefore, 
this  defendant  demurs  thereto,  and  humbly  craves  the  judg- 
ment of  this  honorable  court,  whether  he  is  compellable,  or 
ought  to  make  any  answer  thereunto,  otherwise  than  as  afore- 
said." 

The  bill  is  the  only  pleading  that  may  be  demurred  to  in 
equity.^  The  reason  probably  is,  that  one  of  the  chief  ob- 
jects in  introducing  demurrers  was  to  protect  the  defendant 
from  giving  discovery. 

157.  Of  Pleas. — A  plea  is  a  statement  of  facts  not  con- 
tained in  the  bill,  to  show  cause  why  the  suit  should  be  dis- 
missed, delayed,  or  barred.  It  differs  from  an  answer,  as  it 
demands  the  judgment  of  the  court  in  the  first  instance, 
whether  the  matters  alleged  in  it  do  not  debar  the  plaintiff 
from  the  right  to  an  answer. 

Pleas  are  usually  divided  into  these  four  classes :  (1)  Pleas 
to  the  jurisdiction ;  which  do  not  dispute  the  right  of  the 
plaintiff,  but  assert  that  his  claim  is  not  cognizable  in  equity, 
or  that  some  other  tribunal  has  the  jurisdiction.  (2)  Pleas 
to  tlie  person ;  whicli  deny  the  capacity  of  the  plaintiff  to 
sue.  (3)  Pleas  to  the  bill,  or  to  the  frame  of  the  bill ;  which 
allege  that  for  some  reason,  such  as  the  pendency  of  another 
suit,  or  the  want  of  proper  parties,  complete  justice  can  not 
be  done,  and  the  suit  ought  not  to  proceed.  (4)  Pleas  in 
bar ;  which  are  founded  on  some  bar  created  by  statute,  or 
by  matter  of  record,  or  by  matter  in  pais. 

1  Crouch  V.  Kerr,  38  Fed.  Rep.  549,  and  authorities  there  cited. 


139  EQUITY  PROCEDUEE.  §  158 

Two  questions  may  arise  upon  a  plea :  first,  is  it  sufficient 
in  law ;  and  secondly,  is  it  true  in  fact  ?  If,  upon  argument, 
it  is  held  to  be  good  in  law,  the  plaintiff  may  controvert  its 
truth  by  replication. 

158.  Of  the  Answer. — If  the  defendant  does  not  demur,  or 
plead,  or  make  disclaimer,  or  if  his  demurrer  or  plea  has  been 
overruled,  he  may  controvert  the  plaintiff's  claim  by  answer. 
The  answer  in  chancery  contains  two  distinct  elements — a 
discovery,  and  a  defense.  As  to  the  former  element,  the 
answer  must  contain  a  distinct  and  categorical  answer  to 
every  material  allegation  in  the  stating  part  of  the  bill,  and 
in  the  charging  part  thereof.  The  object  of  these  personal 
answers  is  to  aid  the  plaintiff  in  proving  his  bill.  If  the  bill 
contain  irrelevant  or  immaterial  allegations,  the  answer  need 
not  respond  to  them,  because  the  plaintiff  would  not  be 
entitled  to  prove  them.  So,  if  the  bill  Qontain  matter  to 
answer  which  would  subject  the  defendant  to  a  criminal  prose- 
cution, he  need  not  make  answer  to  such  matter.  The  de- 
fendant may  set  up  in  his  answer  as  many  defenses,  and  of  as 
manj^  kinds,  as  he  is  able  consistently  to  swear  to. 

If  the  discovery  in  the  answer  be  incomplete,  or  if  the  de- 
fensive matter  be  insufficient  or  indefinite,  the  plaintiff  may 
file  exceptions  thereto,  and  require  the  answer  to  be  made 
full  and  particular. 

It  was  originally  the  practice  to  follow  an  affirmative 
defense  by  a  replication.  The  replication  is  now  generally 
dispensed  with,  and  the  same  end  is  accomplished  by  amend- 
ment of  the  bill ;  though  in  some  jurisdictions  a  formal  repli- 
cation is  still  required. 

In  courts  of  equity,  matters  of  mere  form  are  not  allowed 
to  prejudice  the  rights  of  parties ;  consequently,  there  is  great 
liberality  as  to  amendment  of  pleadings,  when  substantial 
justice  will  be  thereby  promoted.^ 


^  For  studies  in  forms  of  plead-  see  "Barton's  History  of  a  Suit  in 

ings  in  equity,  and  for  Rules  of  Equity,"  and  Rapalje's  edition  of 

Practice    established    by  the   Su-  *'  Lube's  Equity  Pleading." 
preme  Court  of  the  United  States, 


\ 


CHAPTER  XV. 

THE  REFORMED  AMERICAN  PROCEDURE. 

159.  The  Origin  of  Code  Pleading.— The  preceding 
chapters  of  this  part  have  been  devoted  to  an  historical  out- 
line of  the  several  systems  of  procedure  that  led  the  way  to 
the  modern  system,  whose  principles  and  their  application 
are  to  be  developed  in  the  succeeding  chapters  of  this  treat- 
ise. It  is  not  the  purpose  here  to  extol  the  new,  or  to  de- 
cry the  old;  but  to  give  some  account  of  the  origin,  and  of 
the  inherent  excellence,  of  the  modern  system. 

Numerous  attempts  were  made,  both  in  England  and  in 
this  country,  so  to  amend  and  simplify  the  common-law  sys- 
tem as  to  free  it  from  artificial  technicalities,  and  bring  it 
into  harmony  with  the  natural  and  logical  foundations  of  pro- 
cedure. But  its  forms  and  formalities,  its  precise  verbiage 
and  its  tedious  ceremonies,  had  been  wrought  into  a  method 
so  cumbrous  that  the  iconoclastic  hand  of  the  legislature  was 
required  for  the  introduction  of  a  plain  and  simple  substitute, 
based  upon  the  inherent  nature  of  legal  rights,  the  principles 
of  the  substantive  law,  and  the  general  rules  of  argument. 
This  innnv:^tion  began  in  1848,  when  the  legislature  of  New 
York  adopted  a  Code  of  Procedure.  Since  that  time,  two 
concurrent  r»,g  noles — the  one  legislative,  the  other  judicial — 
have  contri'  >  .t  d  to  the  development  of  the  sj^stem.  These 
agencies  li;.ve  contributed  dissimilar  elements.  The  statu- 
tory rules  are  positive,  sometimes  arbitrary,  and  are  in  their 
nature  fixed  and  stable  ;  the  judicial  elements  rest  upon 
principle  and  reason,  and  are  in  their  nature  pliant  and  pro- 
gressive. From  these  sources,  a  system  has  been  matured 
that  is  unique  in  its  simplicity,  complete  in  its  scientific 
character,  and  unnvaled  in  its  adaptability. 

160.  Fictions  in  Pleading  are  Abolished. — Resort  to 
140 


[41  REFORMED  PROCEDURE.  §  161 

fiction  was  not  a  progressive  step  in  the  development  of  plead- 
ing. It  was  a  means  for  adapting  the  old  forms  to  new  de- 
mands, and  at  the  same  time  preserving  the  time-honored 
forms.  Fictions  were  invented  to  promote  the  ends  of  justice, 
not  to  thwart  them ;  and  they  were  indulged  only  when  pro- 
motive of  justice.  They  required  no  proof,  and  were  not  tra- 
versable ;  because,  to  require  the  one,  or  to  permit  ihe  other, 
would  defeat  the  purpose  for  which  they  were  designed.^ 
In  the  Reformed  Procedure,  the  pleader  is  required  only  to 
state  the  facts  which,  under  the  substantive  law,  constitute 
his  particular  right  of  action  or  defense,  and  is  not  required 
to  state  sucli  facts  as  would  show  a  right  or  a  defense  accord- 
ing to  some  ancient  form.  There  are,  accordingly,  no  "  es- 
tablished forms ; "  fictions  are  not  needed,  and  they  have, 
with  trifling  exceptions,  been  abolished. 
Ijt-  161.  Forms  of  Action  are  Abolished. — The  builders  of 
the  common-Lxw  procedure  classified  actions,  and  adopted  a 
distinct  "  form  of  action  "  for  each  class  ;  and  they  persistently 
adhered  to  these  established  forms  of  action.  Each  form  of 
action  had  its  peculiar  technical  phraseology,  and  the  pleader, 
having  determined  the  class  to  which  his  right  of  action  be- 
longed, was  required  to  conform  his  statement  to  the  forms 
of  expression  peculiar  to  the  form  of  action  so  adopted.  This 
requirement  aimed  at  certainty  and  precision.  It  was  in- 
tended to  give  the  defendant  notice,  from  the  very  commence- 
ment of  the  action,  of  the  nature  of  the  complaint  against 
liim  ;  to  preclude  the  plaintiff  from  changing  the  ground  of 
his  complaint ;  and  to  enable  the  court  to  apply  to  the  case, 
as  it  progressed,  its  appropriate  rules  of  pleading,  of  evidence, 
and  of  practice.^ 

These  frame rs  of  the  old  system  understood  the  objects  of 
pleading,  but  the  means  they  employed  were  sometimes  ill 
adapted  to  the  end  in  view.  Greater  diversity  could  hardly 
be  found  than  that  which  distinguishes  the  different  sets  of 
operative  facts  conferring  rights  of  action  in  the  infinitude 

'  Gould  PL  iii.  18  ;  Brinkeehoft,        *  Ante,  49. 
J..  ii/Wilson  V.  Wilson,   17  O.  S. 

j'  .'.  loo  ;  Ante,  50. 


^^  /W  r  ^  ^  ^ 


§162  HISTORY  OF  PLEADING.  1^2 

of  cases  daily  arising  out  of  the  jural  relations  among  men. 
To  group  these  into  a  few  classes,  to  bring  into  each  class  an 
almost  endless  variety  of  circumstances,  and  to  force  these 
various  sets  of  circumstances  into  a  prescribed  formula,  is  to 
obscure,  rather  than  to  disclose,  the  true  state  of  facts  relied 
upon.  And  in  the  use  of  forms  of  action,  there  is  superadded 
to  the  task  of  determining  whether  the  operative  facts  give 
a  right  of  action,  the  further  task  of  referring  the  case  to  its 
proper  form ;  and  a  mistake  in  adopting  the  form  of  action 
is  always  prejudicial,  and  sometimes  irremediable.^  The 
new  procedure  abolished  these  "  forms  of  action,"  and  sub- 
stituted a  single  action  for  all  cases,  whether  at  law  or  in 
equity. 

162.  The  Civil  Action  of  the  Reformed  Procedure. — 
One  of  the  most  important  reforms  of  the  new  procedure 
is  the  entire  abolishment  of  "  forms  of  action  "  as  they  ex- 
isted at  common  law,  and  the  use  of  one  form  of  judicial  pro- 
ceeding, known  as  "  a  civil  action."  It  did  not  affect,  or 
undertake  to  affect,  the  composition  of  a  right  of  action — the 
investitive  and  culpatory  facts  that  give  rise  to  the  remedial 
right ;  for  it  is  the  province  of  the  substantive  law,  and  not 
of  the  law  of  procedure,  to  determine  what  facts  shall  con- 
fer a  primary  right,  and  what  facts  shall  amount  to  an  in- 
vasion thereof,  and  authorize  an  action.  In  the  great  variety 
of  causes  that  may  arise,  there  must  be  a  great  diversity  of 
facts  and  groups  of  facts  constituting  a  right  of  action  or  a 
defense ;  and  these  diversified  facts  require  correspondingly 
diversified  statements  thereof.  The  reformed  system  simply 
adapts  the  procedure  to  these  inherent  differences  in  the 
operative  facts  of  cases,  instead  of  adapting  the  facts  to  a 
rigidly  formal  procedure,  as  was  habitually  done  at  common 
law. 

A  plain  statement  of  the  operative  facts  relied  upon  is  the 
most  effectual  means  of  advising  the  adversary  party  and  the 
court ;  it  makes  full  disclosure  and  precludes  the  party  from 
changing  the  ground  of  his  claim  ;  and  it  rests  upon,  and  de- 
mands an  application  of,  the  principles  of  substantive  Jaw, 

•  Ante,  112. 


143  REFORMED  PROCEDURE.  §163 

instead  of  the  forms  of  procedure.  This  single  action  of  the 
modern  procedure  is  readily  adapted  to  the  diversified  forma 
of  jural  relations  ;  it  recognizes  substantial  differences,  and 
ignores  formal  differences ;  and  it  enhances  the  certainty  and 
the  safety  of  procedure. 

163.  Combining  Legal  and  Equitable  Actions  and  De- 
fenses.— Under  the  former  procedure,  actions  at  law  and 
suits  in  equity  were  entertained  by  separate  courts ;  a  legal 
right  of  action  and  an  equitable  right  of  action  could  not  be 
combined  in  one  action  ;  and  an  equitable  defense  could  be 
asserted  only  in  an  equitable  action,  and  in  a  court  of  equity. 
A  plaintiff  having  two  distinct  rights  of  action,  one  legal  and 
the  other  equitable,  both  growing  out  of  the  same  transaction, 
was  compelled  to  pursue  them  in  separate  actions  and  in  dif- 
ferent courts.  For  example,  one  holding  a  note  secured  by 
mortgage,  and  entitled  to  a  judgment  on  the  note  and  a  de- 
cree of  foreclosure  on  the  mortgage,  was  driven  to  two  actions 
to  obtain  these  remedies — an  action  at  law  to  obtain  judg- 
ment on  the  note,  and  a  suit  in  equity  to  foreclose  the  mort- 
gage. And  a  defendant  having  an  equitable  defense  to  an 
action  at  law  was  compelled  to  commence  another  action,  in 
a  court  of  equity,  and  there,  upon  giving  bond,  to  enjoin  the 
plaintiff  in  the  action  at  law  from  proceeding  therein  until 
after  the  court  of  equity  had  passed  upon  his  equitable  de- 
fense. If,  for  example.  A.,  having  the  legal  title  to  land  in 
the  possession  of  B.,  sued  B.  in  an  action  of  ejectment  to  re- 
cover the  possession  of  the  land,  B.  could  not  plead,  in  that 
action,  that  he  was  in  possession  under  purchase  from  A., 
that  he  had  paid  the  purchase  price  and  was  entitled  to  a 
conveyance  of  the  legal  title  from  A.  His  equitable  right 
was  not  recognized  in  a  court  of  law,  and  could  not  be 
enforced  therein  to  defeat  a  recovery.  He  was  required  to 
obtain,  by  an  independent  suit  in  chancery,  a  decree  for 
specific  performance  of  his  contract  with  A. ;  and  having  thus 
obtained  the  legal  title,  he  could  set  it  up  in  the  action  at 
law. 

Under  the  Reformed  Procedure,  which  abolished  the  distinc- 
tion between  actions  at  law  and  suits  in  equity,  an  equitable 
right  may  be  set  up  to  defeat  recovery  in  an  action  brought 


g  164  HISTORY  OF  PLEADING.  144 

to  enforce  a  legal  right.  In  the  example  just  stated,  the  de- 
fendant may  plead  his  equitable  right,  not  only  to  defeat 
recovery  by  the  plaintiff,  but  to  obtain,  at  the  same  time,  the 
affirmative  relief  of  specific  performance. 

The  reformed  procedure  has  abolished  the  distinctions  be- 
tween actions  at  law  and  suits  in  equity,  so  far  as  the  names 
and  forms  thereof  are  concerned,  and  has  substituted  one  form 
of  judicial  procedure,  known  as  a  civil  action  ;  and  has  pro- 
vided that  a  plaintiff  having  several  rights  of  action  against 
the  same  defendant  may,  subject  to  certain  restrictions  as  to 
the  union  of  causes  of  action  in  one  complaint,  pursue  them 
all  in  one  action.  And  under  the  new  procedure  a  defend- 
ant may  join  in  his  answer  as  many  grounds  of  defense, 
counter-claim,  and  set-off,  as  he  may  have,  whether  they  are 
such  as  have  heretofore  been  denominated  legal,  or  equitable, 
or  both. 

These  provisions  have  neither  abolished  nor  affected  legal 
or  equitable  rights  and  reliefs  ;  the  object  has  been  to  avoid 
circuity  of  action  and  multiplicity  of  suits,  and  to  simplify, 
facilitate,  and  cheapen  procedure.  Legal  and  equitable  rights 
and  defenses  remain  as  before  ;  the  modes  of  asserting  them 
are  changed. 

164.  Several  Issues  in  One  Action. — The  combination 
of  legal  and  equitable  demands  and  defenses,  under  the  re- 
formed system,  sometimes  presents  both  legal  and  equitable 
issues  in  one  action.  It  is  the  policy  of  the  Reformed  Pro- 
cedure to  enable  suitors  to  develop,  in  one  action,  as  many 
consistent  grounds,  both  for  relief  and  for  defense,  as  they 
may  have,  or  claim  to  have.  This  is  for  the  convenience 
and  economy  of  litigants  ;  and  to  this  end,  the  codes  are 
liberal  in  their  provisions  for  the  joinder  of  demands  and  of 
defenses,  and  for  the  bringing  in  of  parties.  If  A.,  holding 
the  legal  title  to  land,  sue  B.  for  trespass  thereon,  and  if  C, 
the  equitable  owner  of  the  land,  and  the  one  under  whom  B. 
claims,  be  made  a  party,  and  ask  that  the  action  for  trespass 
be  enjoined  and  the  legal  title  decreed  to  him,  the  contro- 
versy between  A.  and  B.  would  be  purely  legal,  while  that 
between  A.  and  C.  would  be  purely  equitable.  Yet  both 
these  issues  may  be  tried  and  determined  in  the  one  action. 


145  REFORMED  PROCEDURE.  §165 

The  usual  practice  in  such  case  is,  to  stay  the  issue  as  to  the 
trespass,  until  the  equitable  issue  has  been  determined  ;  for 
if  that  should  be  determined  against  the  plaintiff,  the  whole 
case  would  be  ended.^ 

The  common  law  sought  to  avoid  several  issues  in  one 
action ;  the  new  procedure  seeks  to  settle  all  cognate  ques- 
tions in  one  action,  but  to  keep  the  several  issues  separate 
and  distinct.  A  defendant  may,  subject  to  certain  limita- 
tions, have  affirmative  relief  against  the  plaintiff,  or  against 
a  co-defendant. 

165.  Resume  of  Part  Two. — The  history  of  pleading  is 
the  history  of  a  struggle  to  maintain  an  adequate  procedure. 
Jurisprudence  has  grown  with  the  growth  of  civilization.  In 
its  infancy,  its  methods  were  fixed  and  arbitrary  ;  in  its  ma- 
turity, reason  and  equity  hold  sway  in  modes  of  procedure.^ 
In  the  very  earliest  times,  the  only  authoritative  statement 
of  right  and  wrong  was  a  judicial  sentence  after  the  facts  ; 
not  one  -presupposing  a  law  that  has  been  violated.^  In  the 
infancy  of  judicial  procedure,  forms,  the  most  artificial  and 
arbitrary,  are  found ;  and  these  were  the  very  center  of  the 
substantive  law.  The  notion  that  the  law  emanated  from 
the  judge's  inspiration  has  not  been  more  completely  dissi- 
pated, than  has  been  the  idea  that  procedural  forms  embody 
the  law.  From  generation  to  generation,  reason  and 
right  have  controlled,  more  and  more,  the  modes  of  pro- 
cedure. 

The  Civil-law  Procedure,  while  it  was  cumbrous,  and  lacked 
the  inspiration  of  scientific  methods  which  permeate  the 
more  modern  systems,  had  much  of  the  true  spirit  of  judi- 
cial procedure. 

The  Common-law  System  was  overlaid  with  erudition,  and 
was  crippled  with  refinements  and  technical  restrictions. 
But  considering  its  time  and  its  origin,  it  was  a  wonderful 
achievement,  and  worthy  of  the  encomiums  that  have  been 
lavished  upon  it.  Its  chief  distinguishing  excellence  is  the 
complete  separation  of  law  and  fact,  not  only  in  the  plead- 

1  Pom.  Rem.  86  ;  Maasie  v.  Strad-        2  pom.  Rem.  7-9. 
ford,  17  O.  S.  596.  ^  Maine  Ancient  Law,  7. 

10 


g  166  HISTORY  OF  PLEADING.  146 

ings,  but  in  the  trial.  It  formulated  a  system  of  general 
rules  of  statement  and  of  construction  that  have  not  been 
excelled,  and  that  can  not  be  dispensed  with. 

The  Equity  Jurisdiction  was  an  enlarged  view  of  rights  and 
remedies,  and  its  procedure  was  adapted  to  its  wider  range 
of  remedial  right ;  but  its  pleadings  became  cumbersome  and 
confused,  and  were  wholly  wanting  in  scientific  method  and 
in  certainty  and  simplicity.^ 

The  Reformed  Procedure  is  at  once  scientific  and  simple. 
By  its  methods  there  is  presented  a  plain  and  simple  inquiry 
as  to  the  rights  and  duties  of  parties  litigant,  as  these  arise 
from  facts  made  operative  by  law.  The  judicial  investiga- 
tion is  not  hampered  by  adherence  to  arbitrary  forms  and 
technical  distinctions ;  and  the  procedure  is  readily  adjust- 
able to  any  violation  of  a  legal  right,  however  novel  it 
may  be. 

166.  Resume,  Coiitinued. — The  history  of  pleading,  as  it 
has  been  outlined,  shows  that  the  several  systems  of  proced- 
ure do  not  together  form  one  rational  progressive  order  of 
development.  Each  system  has  its  excellences,  and  each 
bears  an  impress  of  the  stage  of  social  and  professional  cult- 
ure of  its  time.  Each  shows  improvement  over  preceding 
systems,  and  there  is  such  connection  as  comes  from  the  re- 
tention of  what  was  of  lasting  value  in  others. 

The  common-law  procedure  was  made  up  at  intervals  and 
by  piecemeal,  without  preconceived  plan,  and  by  resort  to 
temporary  expedients  to  meet  the  exigencies  of  occasion.^ 
The  reformed  system  is  a  synthetical  and  philosophical  sys- 
tem, complete  in  its  entirety,  and  harmonious  in  its  parts. 
The  old  procedure  required  an  obsequious  adherence  to  forms 
and  precedents  ;  the  new  procedure  requires  a  rational  and 
discriminating  application  of  principles.  It  has  not  affected 
legal  rights  and  obligations,  nor  lias  it  dispensed  with  rules 
of  statement ;  it  has  substituted  for  a  procedure  that  was  dog- 
matic and  formal,  one  that  is  rational  and  logical,  and  that  is 
thereby  better  adapted  to  the  administration  of  justice.  The 
pleadings  are,  as  to  matter  of  substance,  governed  by  the 

'  Ante,  148.  «  Walker's  Am.  Law.  504. 


147 


REFORMED  PROCEDURE. 


§166 


substantive  law,  defining  rights  and  obligations ;  and  in 
matter  of  structure  and  interpretation,  they  are  governed 
by  rules  of  statement  based  upon  the  nature  of  rights  and 
the  logic  of  procedure.  The  true  conception  of  pleading 
under  the  reformed  system  is,  a  brief  and  simple  statement  of 
operative  facts,  measured  by  the  substantive  law  as  to  the 
requisite  effect,  and  by  the  law  of  procedure  as  to  the  actual 
effect.  Tlie  crowning  excellence  of  the  Reformed  Proced- 
ure is,  not  that  it  has  discarded  forms  and  abolished  fictions, 
not  that  it  has  condensed  external  methods  into  a  single  civil 
action,  not  that  it  has  joined  legal  and  equitable  demands  and 
defenses,  but  that  it  has,  when  rightly  understood,  brought 
pleading  into  harmony  with  the  true  nature  and  theory  of 
legal  right  and  obligation ;  it  has  made  form  subservient  to 
substance,  and  has  subordinated  the  statement  to  the  thing 
stated.  This  distinguishing  feature  of  Code  Pleading,  out- 
lined in  Part  I.,  will  be  apparent  in  the  study  of  its  formal 
parts,  its  rules  of  statement,  and  the  application  of  principles, 
hereinafter  treated  of.^ 


'  This  chapter  is  brief,  because 
the  subject  will  be  elaborated 
throughout  the  remainder  of  the 
work.  I  will  here  venture  to  add, 
however,  some  words  of  commen- 
dation from  two  of  the  most  distin- 
guished jurists  of  these  times — the 
late  David  Dudley  Field,  of  New 
York,  and  Lord  Coleridge,  the  Chief 
Justice  of  England.  In  1893,  Mr, 
Field  prepared,  by  request,  a  paper 
for  the  Columbian  Exposition  at 
Chicago,  in  which  lie  said  that 
codes  of  civil  procedure,  or  what 
sire  such  in  substance,  have  been 
adopted  "in  twenty-eight  Ameri- 
can States  and  Territories — New 
York,  Missouri,  Wisconsin,  Cali- 
fornia, Kentucky,  Ohio,  Iowa, 
Kansas,  Nevada,  North  Dakota, 
South  Dakota,  Oregon,  Idaho, 
Montana,  Minnesota,  Nebraska, 
Arizona,  Arkansas,  North  Carolina, 
South  Caxolina,  Wyoming,  Wash- 


ington, Connecticut,  Indiana,  Colo- 
rado, Georgia,  Utah,  and  Maine. 
The  example  was  contagious,  even 
so  far  as  across  the  sea  ;  and  in  1873 
the  Parliament  of  England  took  up 
the  subject,  and  adopted  the  Judi- 
cature Act,  by  which  the  forms  of 
action  were  abolished  and  law  and 
equity  fused  together.  This  act 
extended  to  Ireland,  and  has  been 
followed  in  the  English  colonies  of 
Victoria,  Queensland,  South  Aus- 
tralia, Western  Australia,  Tas- 
mania, New  Zealand,  Jamaica,  St. 
Vincent,  the  Leeward  Islands, 
British  Honduras,  Cambia,  Gren- 
ada, Nova  Scotia,  Newfoundland, 
Ontario,  and  British  Columbia." 

In  1883,  Lord  Coleridge,  at  the  re- 
ception tendered  him  by  the  Bar 
Association  of  New  York  City,  in 
replying  to  the  address  of  welcome, 
took  occasion  to  say:  "You  are 
probably  aware  that  we  in  England 


§166 


HISTORY  OF  PLEADING. 


148 


have  been  engaged  for  the  last  ten 
years,  beginning  in  1873,  when  as 
attorney-general  I  was  responsible 
for  passing  the  Judicature  Act 
through  the  House  of  Commons,  in 
endeavoring  to  cheapen  and  sim- 
plify and  expedite  our  procedure 
upon  the  lines  of  those  salutary 
statutes  which  the  wisdom  of 
Parliament  enacted  about  thirty 
years  ago  (in  1852  to  1854).  It  was 
high  time  that  something  was  done 
to  expedite  and  amend  and  simplify 
the  common  law.  It  had  become 
associated  in  the  minds  of  many 
men  with  narrow  technicality  and 
substantial  injustice.  Tliat  was 
not  the  fault  of  the  common  law, 
but  it  was  the  fault,  if  fault  it 
were,  of  the  system  of  pleading, 
which,  looked  at  practically,  was  a 
small  part  of  the  common  law,  but 
very  powerful  men  had  contrived 


to  make  it  appear  that  it  was  al- 
most the  whole  of  it, — that  the 
science  of  statement  was  far  more 
important  than  the  substance  of 
the  right,  and  that  rights  of  liti- 
gants themselves  were  compara- 
tively unimportant  unless  they 
illustrated  some  obscure,  interest- 
ing, and  subtle  point  of  the  science 
of  stating  those  rights.  But  it  is 
really  a  great  pleasure  for  me  to 
find  that  slowly,  and  if  I  may  say 
so,  with  wise  hesitancy,  you  are 
gradually  admitting  into  your  sys- 
tem those  changes  which  we  have 
lately  made,  as  and  when  they 
satisfy  the  needs,  the  temper,  and 
the  genius  of  your  people." 

The  learned  Chief  Justice  seemed 
for  the  moment  to  forget  that 
America  had  led  the  way  in  this 
reform. 


OUTLINE  OF  CODE  PLEADING. 


I.  EEGULAR  PARTS  OF  PLEADING. 


1.  Complaint.- 


1.  Title. 

2.  Statement. 

3.  Relief. 

4.  Verification. 


'  1.  Denials. 


2.  Answer.- 


2.  New  Matter. 


3.  Reply. 


1.  Denials. 

2.  New  Matter. 


ib. 


a.  GreneraL 
Special, 
a.  Dilatory,  j  To  Jurisdiction, 
( In  Abatement. 


b.  In  Bar. 


c.  Affirmative  Relief . 


In  Excuse. 
In  Discharge. 

Counter- 
claim. 
Set-off. 
Cross-com- 
plaint 


ib. 


a.  GeneraL 
SpeciaL 


n.    IRREGULAR  PARTS  OF  PLEADING. 


1.  Motions. 


2.  Demurrers 


r  1.  To  Strike  from  Files.  - 

2.  To  make  Definite. 

3.  To  Separately  State  and  Number. 

4.  To  Strike  Out  Redundant  Matter. 


■\l: 


Special. 


1.  Of  Right. 
3.  Amendments,  -j  2.  By  Leave  Obtained. 

.  3.  Supplemental  Pleadings. 


149 


•     PART  III 

ORDERLY  PARTS  OF  PLEADING. 


SUBDIVISION  1. 

THE  REGULAR  PARTS  OF  PLEADING. 

167.  Scope  and  Divisions  of  This  Part. — Having  set 
forth,  in  Part  I.,  the  philosophy  of  pleading  under  the  Re- 
formed Procedure;  and  having,  in  Part  II.,  presented  the 
essential  principles  and  the  historical  development  of  tlie 
older  systems  of  procedure,  and  an  outline  of  the  new 
system  ;  we  come  now,  according  to  the  order  of  treatment 
proposed,  to  the  orderly  parts  of  pleading  under  the  Re- 
formed Procedure.  These  formal  parts  of  pleading  are  but 
the  framework  of  the  system  ;  they  are  its  mechanism, 
adapted  for  use  in  the  practical  application  of  principles. 

For  convenience  and  perspicuity  of  treatment,  these  formal 
parts  of  pleading  will  be  considered  under  two  general 
divisions  or  groups — the  regular,  and  the  irregular  parts. 
Each  of  the  several  pleadings  will  be  herein  separately  de- 
scribed, and  such  matters  as  pertain  only  to  the  use  of  the 
particular  pleading  under  consideration  will  be  stated,  leav- 
ing those  rules  applicable  to  the  pleadings  in  general  to  be 
stated  in  Part  IV. 
,.y, ->^i;:  168.  Regular  Parts  of  Pleading. — The  pleadings  where- 
by an  issue  in  fact  is  to  be  regularly  evolved  are,  the  com- 
plaint,^ the  answer,  and  the  reply.  The  complaint,  which  is 
the  first  pleading  on  the  part  of  the  plaintiff,  must  contain  a 
plain  statement  of  the  operative  facts  which  constitute  his 
right  of  action,  anjj  a  demand   of  the  relief  sought.     The 

'T  have  used  "complaint"  in  term  used  in  most  of  the  states,  and 
preference  to  "petition,"  found  in  because  it  seems  to  be  etymologi- 
some  of  the  codes,  because  it  is  the    cally  preferable. 

150 


151  THE  REGULAR  PARTS  OF  PLEADING.  S;  168 

answer  of  the  defendant  may  deny  the  allegations  of  the 
complaint,  or  may  allege  any  new  facts  that  are  defensive. 
When  the  answer  states  new  matter,  the  plaintiff  may,  by 
reply,  deny  such  statement  of  new  matter,  or  allege  new 
facts  in  avoidance  thereof.  New  matter  in  the  reply  is  to 
be  deemed  controverted  by  the  defendant,  without  further 
pleading-. 

Tliese  are  the  only  pleadings  of  fact,  and  when  sufficient 
in  substance,  and  proper  in  form,  they  will  always  present  a 
material  issue  in  fact.  As  these  pleadings  are  incident  to 
every  suit,  and  regularly  occur  in  the  ordinary  course  thereof, 
they  may  properly  be  termed  the  regular  parts  of  pleading. 


( 


i^/Uuu^^l        UM^j^^^^^^ 


;Mi^-^    c 


P{!^^    /ui^UuLu^U^  t^.^^     y  ^A^/^-^<-.^ 


\\A*\C\A^         I— -Co-^****'***-^ 


CHAPTER  XVI. 

IHE  COMPLAINT. 

,  t»  7  '  169.  Its  Formal  Parts. — The  complaint  must  contain, 
(1)  the  title  of  the  cause,  including  the  name  of  the  court 
and  of  the  county  in  which  the  action  is  brought,  and  the 
names  of  the  parties ;  (2)  a  statement  of  the  facts  constitut- 
ing the  right  of  action ;  and  (3)  a  demand  of  the  relief  to 
which  the  plaintiff  supposes  himself  entitled.  To  these  may 
be  added,  what  is  really  not  a  part  of  the  pleading,  a  verifi- 
cation on  oath. 

I.    OF   THE  TITLE. 

4«  170.  The  Court  and  the  County. — The  title  must  con- 

tain the  name  of  the  court  and  of  the  county  in  which  the 
action  is  brought.  At  common  law,  the  declaration  was 
required  to  state  the  county  in  which  the  matter  complained 
of  arose ;  formerly,  as  a  guide  to  the  sheriff  in  summoning  the 
jury;  and  afterward,  to  designate  the  place  for  trial.  The 
naming  of  the  court  and  county,  required  by  the  Reformed 
Procedure,  has  no  such  effect  as  the  laying  of  venue  at  com- 
mon law.  The  object  is,  to  identify  the  pleading  with  the 
action  and  the  court.  In  New  York,  however,  where  some 
actions  may  be  brought  in  one  county  and  tried  in  another, 
the  title  must,  in  such  actions,  specify  both  the  county  where 
the  action  is  brought  and  that  in  which  it  is  to  be  tried. 

An  omission  of  the  name  of  the  court  in  a  complaint  is  a 
formal  defect,  that  may  be  corrected  on  motion  in  the  trial 
court ;  and  if  not  so  corrected  there,  it  can  not  be  urged  in 
a  court  of  errors.^ 

171.  The  Names  of  the  Parties. — The  title  must  con- 
tain  the  names  of  the  parties  to  the  action,  and  should  desig- 

1  McLeran  v.  Morgan,  27  Ark.  148. 

152 


THE  COMPLAINT.  §171 

nate  them  as  plaintiff  and  as  defendant.  This  requirement  is  '- 
for  tlie  purpose  of  identifying  tlie  persons;  and  the  rules- 
following  will  show  with  what  degree  of  certainty  the  par-  ] 
ties  to  an  action  are  to  be  designated.  j        I 

They  should  be  designated  by  their  true  names,  and  both^p  / 
the  Christian  name  and  the  surname  should  be  given.  If  one  ^^  ' 
is  known  by  different  names,  either  may  be  used,  or  he  may 
be  sued  with  an  alia$  dictus ;  as,  "  John  Jones,  alias  John 
Brown."  One  whose  name  is  unknown  may,  generally,  be 
sued  by  a  fictitious  name  and  a  description  of  the  person, 
stating  the  reason,  and  amending  the  complaint  before  judg- 
ment, by  inserting  his  true  name.^  A  defendant  sued  by  a 
fictitious  name  is  a  party  to  the  action  from  its  commence-  ^  ' 

ment,  and  the  amendment  of  the  complaint  by  inserting  the  ^u 

true  name  does  not  change  the  cause  of  action  .^  V      \ 

In  actions  by  or  against  partners,  each  person  should  be  t^  '^  ^ 
named  in  the  title,  except  when,  by  favor  of  a  statute,  the  ?" 
suit  is  by  or  against  them  in  the  firm  name  ;  and  in  such 
case,  the  complaint  must,  by  proper  averments,  bring  the 
partnership  clearly  within  the  purview  of  the  enabling 
statute.^  A  corporation,  on  the  other  hand,  can  sue  or  be  sued 
only  in  its  corporate  name,  which  must  be  stated  in  the  title. 

If  one  sue  or  be  sued  in  an  official  or  representative  capacity, 
he  should  be  so  designated  in  the  title.  Thus,  "  A.  B.,  as  , 
administrator  of  the  estate  of  C.  D.,  deceased,  plaintiff, 
against  E.  F.,  as  executor  of  the  will  of  G.  H.,  deceased,  de- 
fendant." The  word  "  as "  should  not  be  omitted.  It  is 
true  that  "  A.  B.,  administrator,"  etc.,  may  sufficiently 
identify  the  person ;  but  it  is  merely  descriptio  personce,  and 
not  a  designation  of  the  capacity  in  which  A.  B.  is  a  party 
to  the  action.^  Where  a  defendant  is  designated  as  "  A.  B., 
mayor,"  etc.,  omitting  the  word  "  as  "  between  the  name  and 
the  official  designation,  and  where  the  scope  and  averments 
of  the  complaint  harmonize  with  the  omission,  the  addition 
of  the  official  title  is  mere  descriptio  personce,  and  the  action 

1  Earle  v.  Scott,  50  How.  Pr.  506  ;  ^  Haskins  v.  Alcott,  13  O.  S.  210. 

Gardner  v.  Kraft,  53  How.  Pr.  499  ;  *  Sheldon  v.  Hoy,  11  How.  Pr.  11 ; 

Rozencrantz  v.  Rogers.  40  Cal.  489.  Bennett  v.  Whitney,  94  N.  Y.  303. 

»  Faxris  v.  Merritt,  63  Cal.  118. 

^^^  J^ta^lL.    1^   -/     TC    UU]   ttU-  J>J<>c*^    t^^*^^    ^^^-^ 


§172        ORDERLY  PARTS  OF  PLEADING.         154 

is  against  the  defendant  as  an  individual.^  But  where  the 
body  of  the  complaint  plainly  discloses  an  official  or  repre- 
sentative capacity  as  the  ground  of  the  action,  the  omission 
of  the  word  "  as  "  is  not  conclusive.^ 

Where  an  infant  sues  by  his  guardian,  or  by  his  next 
friend,  the  infant  is  the  real  party,  and  should  be  so  desig- 
nated in  the  title.  Thus,  "  A.  B.,  an  infant,  by  E.  F.,  his 
next  friend."  ^ 

172.  Use  of  Initial  Letters  and  Abbreviations. — The 
initial  letter  of  a  name  is  not  a  legal  name,  and  should  not 
be  used  to  designate  a  party  ;  *  but  a  single  letter,  whether 
vowel  or  consonant,  may  be  the  Christian  name  of  a  person, 
and  unless  the  contrary  appear,  it  will,  when  standing  alone, 
generally  be  so  regarded  by  the  court.^  As  a  rule,  the  law 
recognizes  but  one  Christain  name,  and  the  initial  letter  of  a 
middle  name  may  generally  be  treated  as  surplusage,  and  a 
mistake  therein  disregarded.^ 

A  party  may  be  designated  by  any  known  and  accepted 
abbreviation  of  his  Christian  name,  and  the  court  will  take 
notice  of  what  such  abbreviation  stands  for ;  as,  "  Jas."  for 
James  ;  "  Christ."  for  Christopher  ;  "  Wm."  for  William  ; 
"  Jno."  for  John.'^  The  words  "  junior  "  and  "  senior  "  added 
to  a  name  are  mere  description,  and  not  part  of  the  name,  and 
need  not  be  proved  as  alleged.^  If  father  and  son  have  the 
same  name,  the  former  is,  in  the  absence  of  proof,  presumed 

1  Bennett  v.  Whitney,  94  N.  Y.  '  Stephen  v.    State,  11  Ga.  225, 

303  ;  Gould  v.  Glass,  19  Barb.  179.  240  ;  Weaver  v.  McEIhenon,  13  Mo. 

»  Beers  v.  Shannon,  73  N.  Y.  292  ;  89  ;  Kemp  v.  McCormick,   1  Mon. 

Bennett  v.  Whitney,  94  N.  Y.  302.  Ty.  420  ;  Studstill  v.  State.  7  Ga.  2. 

3  Vincent  v.  Starks,  45  Wis.  458  ;  «  Coit  v.  Starkweather,  8  Conn. 

Whittem  v.   State,   36    Ind.    196;  293;  Cobb  v.    Lucas,    15  Pick.    7; 

Bowie  V.  Minter,  2  Ala.  406  ;  Jack  Kincaid  v.  Howe,  10  Mass.  203,  205  ; 

V.  Davis,  29  Ga.  219 ;  Williams  v.  Neil  v.  Dillon,  3  Mo.   59 ;  Headley 

Ritchey,  3  Dillon,  406.  v.  Shaw,  39  ni.  354  ;  Allen  v.  State, 

*  Herf  V.  Shulze,  10  Ohio,  263.  52  Ind.    486  ;  People  v.    Cook,   14 
5  Tweedy  v.Jarvis.27  Conn.  42.45.  Barb.    259;    People   v.     Collins,    7 

*  Franklin  v.  Talmat^e,  5  Johns.  Johns.    549  ;  Fleet  v.    Youngs,    11 
84;  Choen  v.  State.  52  Ind.    347;  Wend.  522;  Prentiss  v.  Blake,  34 
State  V.  Martin.  10  Mo.  391  ;  Smith  Vt.    460  ;    Brainard  v.  Stilphim.  6 
V.  Ross,  7  Mo.  463  ;  Isaacs  v.  Wiley,  Vt.  9  ;  Blake  v.  Tucker,  12  Vt.  39. 
12  Vt.  674. 


155  THE  COMPLAINT.  §  173 

to  be  intended;^  but  the  real  intent  may  be  proved 
aliunde. 

173.  Misspelling — Idem  Sonans. — In  very  early  times, 
when  the  judicial  altercation  was  oral,  and  a  minute  of  the 
allegations  was  made  in  writing,  by  an  officer  of  the  court, 
it  sometimes  happened  that  the  officer  misspelled  the  names 
of  the  parties.  But  if  the  name  so  written  sounded  like  the 
name  so  spoken,  it  was  held  to  be  sufficient.  This  rule,  of 
idem  sonans  as  it  is  called,  still  obtains.  Under  this  it  has 
been  held  that  Mars  is  idem  sonay^s  with  Marres;^  McDon- 
nell with  McDonald  ;  ^  Beckwith  with  Beckworth  ;  ^  John- 
son with  Johnston;^  Louis  with  Lewis  ;^  McGloflin  with 
McLaughlin  ; '''  and  Erwin  with  Irvin.^  Resort  to  this  rule 
is  often  necessary  in  spelling  the  names  of  foreigners. 
Whether  one  name  is  idem  sonans  with  another  is  not  a 
question  of  orthography,  but  of  pronunciation  ;  and  when 
it  arises  in  evidence  on  the  general  issue,  it  is  for  the  jury, 
and  not  for  the  court.^ 

A  party  who  is  misnamed  in  a  written  obligation  may  sue 
or  be  sued  thereon  in  his  true  name,  adding  an  explanatory 
statement ;  ^^  though  some  authorities  hold  that  where  a  de- 
fendant has  himself  signed  a  wrong  name  to  the  instrument 
sued  on,  he  should  be  sued  in  such  name,  and  if  he  pleads 
the  misnomer,  the  facts  may  be  stated  in  the  reply. ^^  If  one 
is  sued  by  a  wrong  name,^  or  by  his  Christian  name  alone, ^^ 
is  served  with  process,  and  does  not  plead  the  misnomer, 
judgment  will  bind  him.  Matter  in  abatement,  if  there  be 
actual  notice  to  the  defendant,  is  waived  if  not  pleaded.^* 

'  Brown  v.  Benight,  3  Blackf.  39  ;  "•  Society  v.  Varick,  13  Johns.  38  ; 

Bate  V.  Burr,  4  Harr.  (Del.)  130.  Loving  v.  State,  9  Tex.  App.  471  ; 

«  Com.  V.  Stone,  103  Mass.  421.  Ansley  v.  Green,  82  Ga.  184  ;  Pinc- 

3  McDonald  v.  People,  47  111.  533.  kard  v.  Milwine,  76  111.  453. 

<  Stewart  v.  State,  4  Blackf.  171.  "  Wooster  v.  Lyons,  5  Blackf.  GO; 

5  Bank  v.  Kuhnle,  50  Kan.  420  ;  Gould  PI.  v.  77. 

31  Pac.  Rep.  1057.  ">  Guinard  v.  Heysinger.  15  111. 

«  Girons  v.  State,  29  Ind.  93.  288  ;  State  v.  Tel.  Co.,  36  O.  S.  296; 

'  McLaughlin   v.    State,  52  Ind.  Ry.  Co.  v.  Burress,  82  Ind.  83. 

476.  "3  Hammond  v.    People,    32   111. 

8  Williams  v.  Hitzie,  83  Ind.  303.  446. 

»  Com.  V.  Mehan,  11  Gray,  321  ;  '■»  Hammond    v.  People,   32    111. 

C!om.  V.  Donovan,  13  Allen,  571.  446. 


g^  174-175         ORDERLY  PARTS  OF  PLEADING.  156 

174.  Consequences  of  Misnomer. — At  common  law, 
misnomer,  whether  of  plaintiff  or  defendant,  was  ground  for 
plea  in  abatement.^  Under  the  Reformed  Procedure,  the 
practice  is  not  uniform  as  to  the  way  in  which  misnomer  is 
to  be  taken  advantage  of.  In  most  jurisdictions,  it  may  be 
done  only  by  answer  ;2  while  in  some  it  may  be  done  by 
motion.  Upon  principle,  an  answer  setting  out  the  mistake 
and  giving  the  true  name  is  the  right  method,  for  this  is  the 
proper  way  to  bring  new  matter  upon  the  record  ;  and  both 
the  averment  of  mistake,  and  the  disclosure  of  the  true 
name,  are  new  matter. 

A  demurrer  will  not  lie  for  misnomer,  for  new  matter  can 
not  be  brought  upon  the  record  by  demurrer.^  But  where 
a  complaint  on  a  written  obligation  shows  that  the  name  of 
the  obligor  is  not  that  of  the  defendant,  and  there  is  no  alle- 
gation of  identity,  a  demurrer  will  lie,  not  for  misnomer,  but 
because  such  complaint  does  not  show  a  right  of  action 
against  the  person  sued. 

A  mere  misnomer  is  a  formal  error  that  may  generally  be 
cured  by  amendment,  and  is  always  waived  by  answering  to 
the  merits.  But  where  one  is  sued  by  a  name  entirely  differ- 
ent from  his  true  name,  that  is  not  idem  sonans  therewith, 
and  that  is  not  allegfed  to  be  a  fictitious  name  used  in  iafnor- 
ance  of  the  true  name,  he  is  not  bound  to  appear ;  and  unless 
he  does  appear,  it  would  seem  that  no  amendment  can  be 
made,  for  want  of  jurisdiction  of  the  right  party. 

Where,  by  a  mere  clerical  error,  a  wrong  name  is  written 
in  a  pleading,  and  it  is  obvious  from  the  pleading  itself  wliat 
name  was  intended,  the  mistake  is  immaterial ;  for  if  a  party 
is  misled  by  such  mistake,  it  must  be  by  his  own  careless- 
ness.* Such  mere  mistake  is  not  ground  for  demurrer,  and 
may  at  any  time  be  corrected  on  motion,  or  upon  leave  ob- 
tained ;  and  this  is  generally  allowed  to  be  done  by  erasure 
and  interlineation. 

175.  Title  as  Part  of  Complaint. — The  requirement  that 

1  Steph.  PL  284  ;  Gould  PI.  v.  69,  » siocum  v.  McBride,"t7  Ohio,  607. 

78.  *  Fears  v.  Albea,  69  Tex.  437  ;  5 

'  Thompson  v.  Elliott,  5  Mo.  118;  Am.  St.  Rep.  79. 
State  V.  Tel.  Co.,  36  0.~S.  296. 


157  THE  COMPLAINT.  §§170-177 

the  complaint  shall  contain  the  names  of  court  and  count}', 
and  the  names  of  parties  plaintiff  and  defendant,  makes  the 
title  a  part  of  the  complaint.  For  this  reason,  the  title  is  to 
be  regarded  in  construing  the  complaint ;  ^  and  for  the  same 
reason,  the  parties  may  generally  be  referred  to  in  the  body 
of  the  complaint  as  "  the  plaintiff,"  and  "  the  defendant," 
without  again  naming  them,^  or  only  the  surname  may  be 
used  ;  and,  generally,  a  defect  or  omission  in  the  title,  if  the 
defective  or  omitted  matter  be  correctly  set  out  in  the  state- 
ment, will  not  make  the  pleading  demurrable,  though  it  may 
subject  it  to  a  motion. ^ 

It  may  here  be  stated  that  natural  persons  are  presumed 
to  have  capacity  to  sue  and  to  be  sued ;  and  where  a  part}"- 
is  designated  by  an  individual  name,  and  there  is  nothing  to 
indicate  want  of  capacity,  no  statement  of  capacity  need  be 
made,  either  in  the  title  or  in  the  body  of  the  complaint.* 
And  parties  will  be  presumed  to  be  citizens  of  the  state, 
unless  the  contrary  appear.^ 

176.  Complaint  to  be  Further  Entitled. — The  codes 
generally  provide  that  the  names  of  court,,  county,  and 
parties  shall  be  followed  by  the  word  "  Complaint,"  or 
"  Petition."  This  part  of  the  caption  is  purely  formal.  Its 
omission  is  to  be  reached  by  motion  to  strike  from  the  files, 
and  may  be  supplied  by  amendment,  without  delay .^  There 
is  generally  no  such  requirement  as  to  the  subsequent 
pleadings,  though  it  is  good  practice  to  properly  entitle  all 
pleadings. 

II.    OF  THE  STATEMENT. 
(1)  THE   MATTER  TO  BE  STATED. 

177.  Capacity  of   Parties.— It   must  appear  from  the 

1  King  V.  Bell,  13  Neb.  409  ;  Mc-  Blackwellv.  Montgomery,!  Handy, 
Closkey  v.  Strickland,  7  Iowa,  259.  40. 

2  King    V.    Bell,    13    Neb.    409;  ^  Gould  PL    iii.    194;    Prince   v. 
Lowry  v.  Button,  28  Ind.  473 ;  Mc-  Towns,  83  Fed.  Rep.  161. 

Leran  v.  Morgan,  27  Ark.  148.  Cf.  '  Bronson,  J., in  Lester  v.  Wright, 
Cosby  V.  Powers,  137  Ind.  694.  2  Hill,  320. 

'  Ammerman  v.  Crosby,  26  Ind.        «  Butcher  v.  Bank,  2  Kan.   70  ; 
451  ;  State  V.  Patton,  42  Mo.  530;    Blackwellv.  Montgomery,!  Handy, 

40. 


§  177  ORDERLY  PARTS  OF  PLEADING.  158 

complaint,  either  by  averment  or  by  legal  presumption  dis- 
pensing with  such  averment,  that  the  parties  to  the  action 
are  capable  in  law  of  sustaining  the  jural  relation  on  which 
the  action  is  founded,  and  of  suing  and  being  sued  in  regard 
thereto.  If  they  are  natural  persons,  and  their  names  are 
correctly  given  in  the  title,  their  existence,  and  their  capac- 
ity as  individuals,  will  be  presumed,  and  no  statement  in 
this  regard  is  needed.^  If  either  party  stands  in  a  represent- 
ative capacity,  is  an  artificial  person,  or  is  an  association  of 
persons,  qualifying  statements  are  called  for,  in  addition  to 
the  designation  contained  in  the  title ;  for  the  title  is  not  the 
place  for  allegations,  and  any  designation  therein  will  not 
supply  the  want  of  allegations  to  show  capacity  of  parties.^ 

On  the  other  hand,  if  the  designation  in  the  title  show 
the  incapacity  of  a  party,  as  that  he  is  an  infant,  and  the  body 
of  the  complaint  contain  no  averment  showing  such  in- 
capacity, the  legal  capacity  of  such  party  will  be  assumed, 
notwithstanding  the  designation  in  the  title.'^ 

Where  either  party  is  the  personal  representative  of  a 
deceased  person,  the  facts  which  clothe  him  with  represent- 
ative power  should  be  stated,  and  stated  issuably.  If  one 
sue  as  administrator,  he  should,  in  addition  to  describing  him- 
self in  the  title  "  as  administrator,"  allege  the  death  of  the 
intestate,  that  on  a  day  named  a  court  of  competent  jurisdic- 
tion granted  to  him  letters  of  administration,  and  that  he 
qualified  and  is  acting.*     Thus  ;  "On  the  day  of  , 

letters  of  administration  on  the  estate  of  A.  B.,  theretofore 
deceased  intestate,  were,  by  the  Probate  Court  of 
County,  Ohio,  duly  issued  to  the  plaintiff,  who  thereupon 
duly  qualified  and  entered  upon  the  duties  of  said  office." 
The  mere  allegation  that  a  party  was  "  duly  appointed,"  or 
that  he  "  is  administrator,"  has  sometimes  been  held  sufficient 
on  demurrer,  or  as  against  a  denial ;  ^  but  such  allegation  is 

1  Prince  v.  Towns,  33  Fed.  Rep.  ^  Funk  v.  Davis,  103  Ind.  281  ;  2 
161  ;  Maxedon  v.  State,  24  Ind.  370.     N.  E.  Rep.  739. 

«  Toimie  v.  Dean,  1  Wash.  Ter.  *  Beach  v.  King,  17  Wend.  197  ; 
N.  S.  46,  50  ;  Gould  v.  Glass.  19  Sheldon  v.  Hoy,  11  How.  Pr.  11. 
Barb.  179.  '  Gutridge  v.  Vanatta.  27  O.  S. 

366  ;  Meara's  Adm.  v.  Holbrook,  20 


259  THE  COMPLAINT.  §178 

faulty,  and  amenable  to  motion  to  make  definite.  Where 
one  sues  or  is  sued  in  any  representative  capacity, — such  as 
executor,  guardian,  trustee,  receiver,  assignee  in  insolvency, — 
the  extrinsic  facts  conferring  such  power  should  be  stated,  so 
that  it  may  appear  to  the  court,  as  matter  of  fact,  that  he 
sustains  such  relation  ;  and  these  facts  should  be  stated  witli 
such  fullness  and  certainty  that  they  may  be  traversed, 
because  they  are  material  and  traversable  facts. ^ 

178.  Capacity  of  Parties — Corporations. — A  corpora- 
tion transacts  its  business,  and  is  known  to  the  world, by  its 
corporate  name  ;  and  by  such  name  it  must  sue  and  be  sued. 
When  a  corporation  is  party  to  an  action,  its  corporate  exist- 
ence must  be  made  to  appear ;  that  is,  it  must  appear  that 
the  name  used  stands  for  something  that  has  legal  existence 
and  capacity.  If  the  corporation  be  a  domestic  municipal 
corporation  created  by  a  public  act,  or  a  domestic  private 
corporation  created  by  a  public  law,  the  courts  will  take 
judicial  notice  of  its  existence  and  powers,  and  for  this 
reason  no  allegation  thereof  is  necessary .^  This  is  because 
all  courts  take  judicial  cognizance  of  the  public  laws  of  their 
own  state.  As  to  other  corporations  there  is  sucli  diversity 
of  holdings  and  enactments  that  no  general  rule  can  be 
formulated  ;  and  to  give  the  rules  in  the  different  states, 
with  such  particularity  as  to  give  practical  guidance,  Avould 
be  beyond  the  purpose  and  the  compass  of  this  work.^  In 
some  states,  as  at  common  law,  no  averment  of  corporate 
existence  is  required ;  in  others,  an  averment  that  the  party 
is  a  corporation,  organized  under  the  laws  of  a  given  state,  is 
sufficient ;  while  in  others,  the  facts  which  give  the  corpora- 
tion legal  existence  are  required  to  be  stated.  In  some  juris- 
dictions, failure  to  make  the  requisite  allegations  is  to  be 
taken  advantage  of  by  demurrer ;  in  others,  by  motion.     In 

O.    S.    146  ;  Schrock  v.  Cleveland,  260,  408,  408a  ;  Abb.  PI.  Brief.  203- 

29  O.  S.  499  ;  Bird  v.  Cotton,  57  Mo.  206  ;    Abb.   Tr.   Ev.    18,    19  ;  Pom 

568.     Cf.  Trustees,  etc.  v.  Odlin,  8  Rem.  208,  note  ;  Moraw.   on  Corp. 

O.  S.  293.  772  ;  2  Beach  on  Corp.    862  ;  Ang. 

^  Sheldon  v.  Hoy,  11  How.  Pr.  11.  and  Ames  on  Corp.  632  ;  4  Am.  and 

»  Post,  341.  Eng.  Encyc.  284  ;  14  Am.  Dec.  536; 

«  Boone  PI.  31,  138  ;  Bliss  PI.  246-  16  Id.  TC5  ;  76  Id.  68  ;  78  Id.  769. 


§179  ORDERLY  PARTS  OF  PLEADING.  160 

common-law  pleading,  a  corporation  may  declare  in  its 
corporate  name,  without  averring  corporate  existence  ;  and 
its  corporate  existence  is  put  in  issue  by  the  general  issue. 
In  some  states,  corporate  existence  is  put  in  issue  by  general 
denial,  while  in  some  a  special  plea  is  required. 

Upon  principle,  it  would  seem  that  corporate  existence 
sliould  be  alleged.  A  corporation  is  an  artificial  person  ;  and 
its  capacity  to  sue  and  be  sued  results  from  its  corporate 
existence ;  the  mere  name  furnishes  no  presumption  of 
corporate  existence  or  of  legal  capacity;  and  in  no  way 
but  by  averment  can  its  existence  and  its  capacity  be 
made  to  appear  to  the  court  whose  action  is  invoked  for  or 
against  it. 

179.  Corporate  Capacity,  Continued. — Incorporation  is 
a  fact — an  ultimate  fact,  the  fact  to  be  pleaded.  It  is  true 
that  corporate  existence  involves,  (1)  a  grant  of  corporate 
franchises  by  the  government,  generally  by  legislative  sanc- 
tion, (2)  an  acceptance  of  such  grant  by  persons  associated 
for  that  purpose,  and  (3)  regularity  of  origin,  conforming  to 
the  legislative  sanction.  But  there  is  a  distinction  between 
cases  which  involve  the  mere  heing^  and  those  which  involve 
the  right  to  he.  In  ordinary  actions  by  or  against  corpora- 
tions, whether  upon  contract  or  for  wrongs  committed,  where 
the  fact  of  corporate  existence  is  mere  matter  of  inducement, 
iihe  regularity  of  the  organization  can  not  be  inquired  into, 
and  it  is  sufficient  if  the  party  be  shown  to  be  a  corporation 
de  facto.  In  such  cases,  a  general  allegation  that  the  party 
is  a  corporation  duly  organized  under  the  laws  of  a  given 
state  should  be  sufficient ;  ^  and  such  allegation  is  sustained 
by  proof  of  existence  under  color  of  law,  without  proof  of 
reo-ular  organization  in  conformity  to  law.^  On  the  other 
hand,  in  actions  which  involve  the  right  to  be,  and  where 
the  corporate  existence  is  the  gist  of  the  action,  fuller  alle- 
gations and  proof  should  be  required.^  And  where  the 
powers  and  franchises  granted  to  a  corporation  by  one  state, 

1  Smith  V.  Sewing  Machine  Co.,        »  Abb.  Tr.  Ev.  18-29. 
26  O.  S.  563.   Cf.  Lorillard  v.  Clyde,        ^  Abb.  Tr.  Ev.  18  et  seq.  ;  Bliss 
86  N.  y.  384.  PI.  311. 


161  THE  COMPLAINT.  §  180 

or  any  right  claimed  under  them,  becomes  the  foundation  of 
an  action  in  another  state,  such  powers  and  franchises  must 
be  specially  pleaded.^ 

The  weight  of  authority  is  to  the  effect  that  where  an 
instrument  by  its  terms  recognizes  the  representative  capacity, 
or  the  corporate  existence,  of  any  party  to  it,  no  qualifying 
averments  as  to  such  part}''  are  necessary  in  a  complaint 
thereon.  But  as  the  decisions  are  not  uniform  as  to  the 
application  of  this  rule,  or  as  to  the  grounds  upon  which  it 
should  rest,  the  careful  pleader  will  not  omit  such  averments 
where  they  would  otherwise  be  called  for. 

180.  Capacity  of  Parties — Partnerships. — It  has  been 
seen  that  in  actions  by  or  against  partners,  as  such,  the 
names  of  the  persons  composing  the  firm  should  be  set  forth 
in  the  title.^  In  addition  to  this,  the  fact  of  partnership 
should  be  alleged  in  the  statement.  Partnership  demands 
and  liabilities  being  joint,  such  allegation  is  necessary  to 
authorize  the  joinder  of  parties.  And  where  either  party  to 
an  instrument  is  a  partnerehip,  designated  therein  by  its  firm 
name,  a  complaint  thereon,  joining  the  individuals  as  parties, 
should  allege  the  partnership  ;  for  otherwise,  the  instrument 
would  not,  as  evidence,  support  the  complaint.^  And  this  is 
so,  whether  the  instrument  be  pleaded  by  its  legal  effect,  or 
by  copy. 

If  the  names  of  the  persons  composing  the  firm  are  given 
in  full  in  the  title,  as  they  should  be,  it  is  not  necessary  to 
repeat  them  in  the  allegation  that  they  are  partners  ;  it  is 
sufficient  to  allege  only  that  the  plaintiffs,  or  defendants,  are 
partners.* 

In  actions  under  favor  of  a  statute  authorizing  certain 
partnerships  to  sue  and  be  sued  by  their  firm  names,  without 
disclosing  the  names  of  the  several  partners,  the  firm  so 
designated  must,  by  allegations,  be  brought  clearly  within 
the  statute  ;  otherwise,  it  would  not  appear  that  the  words 
used  stood  for  anything  capable  of  sustaining  the  relation  of 

'  Devoss  V.  Gray,  23  O.  S.  159.  *  Adams  Exp.  Co.  v.  Harris,   120 

«  Ante,  171.  Ind.   73  ;    16  Am.    St.    Rep.   315  ; 

•  Neteler  v.  Culies,  18  111.  188.  King  v.  Bell,  13  Neb.  409. 
11 


§181  ORDERLY  PARTS  OF  PLEADING,  162 

party  to  an  action,  and  the  proceedings  would  lack  that 
degree  of  certainty  which  is  essential  to  judicial  proced- 
ure.^ 

If  it  appear  from  the  complaint  that  the  plaintiff  has  not 
capacity  to  sue,  the  defendant  may  demur  on  that  ground ; 
but  if  he  pleads  to  the  merits,  he  admits  the  plaintiff's 
capacity,  and  waives  the  apparent  defect.* 

181.  Jurisdictional  Facts. — It  should  appear  from  the 
complaint  that  the  court  selected  by  the  plaintiff  may  legally 
entertain  the  action.  The  right  and  power  of  the  court  to 
entertain  the  action  is  called  jurisdiction. 

There  is  an  important  distinction  between  courts  of  general 
jurisdiction  and  those  of  limited  jurisdiction.^  In  respect  to 
the  former,  jurisdiction  will  be  presumed,  unless  the  want  of 
it  appear  ;  ^  but  in  respect  to  the  latter,  there  is  no  such 
presumption,  and  their  jurisdiction  must  be  made  to  appear 
upon  the  record  of  their  proceedings.^  And  this  is  so  as 
to  all  persons  and  tribunals  exercising  a  special  delegated 
authority. 

When  jurisdiction  is  specially  conferred  by  statute,  whether 
in  a  court  of  general  or  of  inferior  jurisdiction,  the  complaint 
must  show  that  the  case  is  of  the  class  provided  for  by  the 
statute  ;  otherwise,  the  plaintiff,  by  not  showing  his  right  to 
resort  to  the  statute  for  relief,  fails  to  bring  his  case  within 
the  jurisdiction.^  If  a  statute  authorizes  proceedings  in 
invitum,  only  after  an  effort  and  failure  of  the  parties  to 
agree,  as  in  some  cases  to  appropriate  private  property,  the 
complaint  must  show  such  effort  and  failure.'^  The  general 
rule  is,  that  in  courts  of  general  jurisdiction,  it  is  sufficient, 
except  when  the  jurisdiction  invoked  is  specially  conferred 
by  statute,  if  want  of  jurisdiction  does  not  affirmatively  ap- 

'  Haskins  v.  Alcott,  13  O.  S.  210,  Crane,    16  Vt.   246 ;    Strughan    v. 

216.  Inge,  5  Ind.  157. 

'  Meth.  Ch.  V,  Wood,  5  Ohio,  283;  «  Edmiston  v.  Edmiston,  2  Ohio, 

Spence  v.  Ins.  Co.,  40  O.  S.  517.  251. 

3  Post,  374,  375.  ■>  Reitenbaugh  v.  Ry.  Co.,  21  Pa. 

♦Weiderv.  Overton,  47  Iowa,  538.  St.  100;  Ellis  v.  Ry.  Co.,   51   Mo. 

»Doll  V.    Feller,    16    Cal.    432;  200.    Cf.    Burt    v.    Brigham,    117 

Schell  V.  Leland,  45  Mo.  289  ;  Bank  Mass.  307. 
V.   Treat,    18  Me.    340;  Barrett  v. 


263  THE  COMPLAINT.  §  182 

pear ;  and  in  courts  of  limited  jurisdiction,  the  complaint 
must  affirmatively  show  that  the  case  falls  within  the  juris- 
diction of  the  court  whose  action  is  invoked.  But  in  all 
cases,  and  in  all  courts,  where  the  right  to  exercise  jurisdic- 
tion depends  upon  the  existence  of  certain  extrinsic  facts, 
their  existence  must  be  alleged.  In  actions  in  their  nature 
local, — such  as  for  the  recovery  of  real  property,  or  the  fore- 
closure of  a  mortgage, — the  complaint  should,  as  a  rule,  show 
that  the  subject  of  the  action  ^  is  within  the  territorial  juris- 
diction of  the  court.  And  where  jurisdiction  depends  upon 
the  value  of  specific  property  in  controversy,  its  value  should 
be  alleged  in  the  complaint.  Where  jurisdiction  of  a  cause 
depends  upon  the  citizenship  of  parties,  as  it  does  in  some 
cases  in  the  Federal  Courts,  the  requisite  fact  should  appear 
in  the  complaint. 

The  absence  of  jurisdictional  facts,  when  such  are  required 
to  be  alleged,  renders  a  complaint  demurrable.  And  when 
want  of  jurisdiction  appears  on  the  record,  the  court 
should,  of  its  own  motion,  dismiss  the  action.^  It  has  been 
held  that  a  defendant  in  an  equity  action  can  not  avail  him- 
self of  the  defense  that  an  adequate  remedy  at  law  exists, 
unless  he  pleads  that  defense  in  his  answer ;  and  where  the 
facts  alleged  are  sufficient  to  entitle  plaintiff  to  relief  in 
some  form  of  action,  and  no  objection  has  been  made  by  de- 
fendant to  the  kind  of  action,  either  in  his  answer  or  on  the 
trial,  it  is  too  late  to  raise  the  objection  after  judgment,  or 
on  .appeal.^       ..*''' 

182.  The  Cause  of  Action. — Facts  stated  to  show  the 
capacity  of  the  parties,  when  such  qualifying  facts  are  called 
for,  and  jurisdictional  facts,  when  these  are  necessary,  con- 
stitute  no  part  of  the  cause   of  action.     In  addition  to,  and 

'  There  is  a  distinction,  not  al-  ment,  the  subject-matter,  but  not 

ways  observed,  between  the  subject-  of  the  land,  the  subject  of  the  action. 

•matter  of  an  action — the  nature  of  Post,  463.     Cf.  post,  330,  468. 

the  riglit  asserted,  and  the  subject  '  Metcalf  v.  Watertown,  128  U. 

of  an  action — the  thing  upon  which  S.  586. 

it  is  to  operate.     The  one  may  be  ^  Lough  v.   Outex'bridge,  143  N. 

within   the   jurisdiction,   and    the  Y.  271  ;  Mentz  v.  Cook,  108  N.  Y. 

other  without.     A  court  may,  for  504. 
example,  have  jurisdiction  of  eject- 


u  7 


g  183        ORDERLY  PARTS  OF  PLEADING.  I64 

independently  of,  such  facts,  the  complaint  must  contain  a 
statement  of  facts  constituting  a  cause  of  action.  The  pro- 
vision of  the  codes  as  to  this  part  of  the  complaint  is,  that  it 
shall  contain  "  a  statement  of  the  facts  constituting  the  cause 
of  action,  in  ordinary  and  concise  lang^uage."  This  limits 
the  statement,  (1)  to  facts,  and  (2)  to  such  facts  as  con- 
stitute the  right  of  the  plaintiff  and  the  delict  of  the  defend- 
ant. It  excludes,  (1)  facts  that  are  only  probatiye,  (2) 
statements  of  the  law,  and  (3)  inferences  and  arguments. 
A  right  of  action,  as  explained  in  a  former  chapter,^  is  a  re- 
medial right,  arising  out  of  a  primary  right  in  the  plaintiff,  a 
corresponding  duty  of  the  defendant,  and  a  breach  of  this 
duty.  This  primary  right  and  duty,  and  the  defendant's 
violation  thereof,  are  to  be  displayed  in  the  complaint ;  and 
this  is  to  be  done  by  stating,  (1)  such  constitutive  facts  as, 
under  the  substantive  law,  operate  to  create  such  right  and 
duty,  and  (2)  such  culpatory  facts  as  sliow  an  invasion  of 
the  right,  and  a  breach  of  the  duty.  Such  statement  shows 
a  right  of  action  in  the  plaintiff,  against  the  defendant,  and 
authorizes  the  interposition  of  the  court,  and  hence  constitutes 
and  is  a  cause  of  action.^  Where  the  facts  to  be  stated  tend 
to  indefiniteness  and  multiplicity,  a  general  allegation  is 
generally  allowed.^ 

183.  When  only  Delict  to  he  Stated. — There  is  a  class 
of  cases,  however,  in  which  it  is  not  necessary  to  state  the 
facts  from  which  arise  tlie  primary  right  and  duty.  Actions 
for  assault  and  battery,  and  for  slander,  are  examples.  The 
primary  right  in  both  these  cases  is  the  right  of  personal 
security — the  uninterrupted  enjoyment  of  the  person,  in  the 
one  case,  and  of  the  reputation  in  the  other ;  and  the  primary 
duty  in  the  one  case  is,  not  to  injure  or  annoy  the  person, 
and  in  the  other,  not  to  defame  the  reputation.*  These  are 
rights  in  rem,  available  to  all  persons,  and  against  all  per- 
sons ;  they  require  for  their  assertion  no  facts  but  the  exist- 
ence of  the  person  of  inherence ;  and  when  natural  persons 

1  Ante,  29-32.  »  Eq.  Ac.  Ins.  Co.  v.  Stout,  135 

»  Ante,  31.  Ind.  444. 

*  Ante,  19. 


165  THE  COMPLAINT.  §  184 

are  named  in  a  complaint,  their  existence  is  presumed.^  In 
all  such  actions,  therefore,  only  the  facts  showing  the  delict 
need  be  alleged.  But  notwithstanding  this  abridgment  of 
the  complaint  in  such  cases,  it  displa3'-s  the  same  constituent 
elements — right  and  delict — that  are  required  in  other  cases, 
and  is  not  an  exception  to  the  general  rule  as  to  the  requisites 
of  a  right  of  action.'^  > 

184.  Only  Facts  to  be  Stated. — It  has  been  shown  that  a 
remedial  right,  or  right  of  action,  arises  from  both  facts  and 
law — facts  made  operative  by  law.^  Therefore,  a  complete 
statement  of  all  the  constitutive  elements  of  a  right  of  action 
would  embrace,  not  only  the  operative  facts,  but  the  law 
that  makes  them  operative.  But  for  reasons  heretofore 
stated,^  the  law  which  enters  into  the  remedial  right  must 
be  excluded  from  the  complaint,  and  only  the  operative 
facts  stated.  Any  attempt  to  combine  facts  and  law,  to  give 
the  facts  a  legal  coloring,  is  a  violation  of  this  fundamental 
principle  of  pleading. 

Violations  of  this  rule  generally  occur,  not  in  the  state- 
ment of  abstract  rules  of  law,  but  in  the  blending  of  law  and 
facts,  or  in  the  statement  of  legal  conclusions  drawn  from 
facts  not  stated. 

An  allegation  that  one  is  "heir"  of  another  is  a  conclu- 
sion of  law  ;  the  facts  should  be  stated,  so  that  the  legal  rela- 
tion may  appear  to  the  court.  An  allegation  that  one  is 
"  indebted  "  to  another,  or  that  the  defendant  was  "  bound 
to  repair,"  or  that  an  act  was  "  wrongful,"  or  "  unlawful," 
or  that  one  "  is  entitled  to  "  a  thing,  or  that  a  certain  injur}'- 
would  be  "irreparable"  in  damages,  is  a  mere  legal  conclu- 
sion. Such  allegations  are  insufficient  on  demurrer,  and  will 
not  admit  evidence  to  support  them;  they  call  for  no  respon- 
sive pleading,  and  are  not  admitted  by  failure  to  deny.^  This 
rule  of  exclusion  does  not  apply,  however,  to  private  statutes, 


1  Ante,  177.     C/.  Stafford  v.  The        'Post,    343  et    seq.,   where  the 

M.  J.  Assn.,  142  N.  Y.  598.  rule  excluding  conclusions  of  law 

*  Pom.  Rem.  525.  from  all  pleadings  is  fully  illus- 

*  Ante,  30.  trated,  and  authorities  cited. 

*  Ante,  33. 


§  185  ORDERLY  PARTS  OF  PLEADING.  166 

or  to  foreign  laws ;  for  these  are  regarded  as  facts,  to  be 
pleaded  and  proved.^ 

Where  only  the  law,  or  a  legal  conclusion,  is  pleaded,  the 
complaint,  not  stating /aci^s  sufficient  to  constitute  a  cause  of 
action,  is  demurrable.  '  But  where  sufficient  facts  are  stated, 
either  separate  from,  or  blended  with,  legal  conclusions,  the 
remedy  is  by  motion.  If  the  objectionable  matter  can  be 
separated  from  the  otlier  averments,  it  may  be  stricken  out ; 
otherwise,  the  motion  should  be  to  make  definite. 

185.  Operative  and  Evidential  Facts  Distinguished.^ 
In  the  statement  of  a  cause  of  action,  not  only  must  facts  be 
stated,  to  the  exclusion  of  the  law  and  of  legal  conclusions ; 
but  only  operative  facts,  as  distinguished  from  evidential 
facts,  are  to  be  stated.  Tlie  facts  with  which  the  administra- 
tion of  justice  is  concerned  are  operative  facts,  and  evidential 
facts.  Operative  facts  are  those  to  which  the  substantive 
law  annexes  consequences.  They  are  the  facts  from  which 
proceed  rights  and  obligations  and  wrongs.  They  are  the 
facts  which  enter  into  and  create  jural  relations  between 
persons.  The  legal  rights  and  obligations  of  persons  sustain- 
ing jural  relations  are  such  as  the  substantive  law  attaches  to 
the  facts  which  enter  into  and  create  those  relations ;  and 
these  facts,  because  they  operate  under  the  law  to  create 
rights  and  obligations,  are  called  operative  facts.  Operative 
facts  are  divided  into  three  classes ;  (1)  such  as  operate  to 
invest  some  one  with  a  legal  right,  and  are  hence  called 
investitive  facts,  (2)  such  as  operate  to  divest  some  one  of  a 
legal  right,  and  are  hence  called  divestitive  facts,  and  (3)  such 
as  work  a  wrongful  interference  with  an  existing  legal  or 
equitable  right,  and  are  hence  called  culpatory  facts.  Eviden- 
tial facts  are  such  as  in  their  nature  tend  to  show  that  any 
of  the  operative  facts  aforesaid  do,  or  do  not,  exist. 

In  the  statement  of  a  cause  of  action,  only  the  ultimate, 
operative  facts  of  the  transaction  involved  are  to  be  stated ; 
because  it  is  these,  and  these  only,  that  give  the  plaintiff  a 
right  of  action.  The  subordinate  and  intermediate  facts, 
the  probative  matter  of  the  transaction,  should  not  be  stated. 

'  Post,  340, 


167  THE  COMPLAINT.  g  186 

186.  Operatiye  and  Evidential  Facts — Illustrations. — 

The  process  of  evaluating  and  differentiating  the  confused 
facts  of  a  transaction,  and  separating  the  operative  from  the 
probative  facts,  is  one  that  requires  much  care  and  discrim- 
ination. It  is  the  first  step  in  determining  whether  a  right 
of  action  exists,  and  is  an  indispensable  prerequisite  to  an 
intelligent  statement  of  a  cause  of  action.  A  familiar  ex- 
ample will  illustrate  the  distinction  here  made,  and  its  prac- 
tical application.  Suppose  that  KTsold  and  delivered  to  (*. 
a  horse,  for  one  hundred  dollars,  to  be  paid  in  thirty  days  ; 
that  the  thirty  days  have  elapsed,  and  no  part  of  the  price 
has  been  paid  ;  that  B.  offered  to  sell  the  horse  to  C,  and 
afterward  sold  him  to  D.  ;  that  he  told  E.  and  F.  that  lie 
had  bought  the  horse  and  had  not  paid  for  him  ;  and  that  he 
now  denies  the  purchase.  The  jural  relation  between  A.  and 
B.  is  plainly  that  of  creditor  and  debtor,  and  it  is  clear  that 
A.  has  a  right  of  action  against  B.  It  is  equally  clear  that 
some  of  the  facts  stated  are  operative,  and  tliat  others  are 
evidential.  That  A.  sold  the  horse  to  B.,  for  the  agreed 
price  of  one  hundred  dollars,  to  be  paid  in  thirty  days,  and 
the  lapse  of  this  time,  are  operative  facts.  These  are  consti- 
tutive facts,  showing  a  primary  right  in  A.  to  receive  one 
hundred  dollars  from  B.,  and  the  corresponding  duty  of  B. 
to  make  payment.  That  B.  has  not  paid,  is  a  culpatory  fact, 
showing  the  delict  of  B.  These  operative  facts  entitle  A.  to 
an  action  against  B.  The  other  facts  are  evidential.  The 
subsequent  sale  of  tlie  horse  by  B.  was  no  part  of  his  trans- 
action with  A,,  and  in  no  way  affected  their  jural  relations. 
It  is  merely  an  act  of  B.  that  tends  to  show  his  understand- 
ing of  his  relation  to  the  property ;  and  liis  admission  of 
purchase  and  non-payment  boais  the  same  relation  to  his 
transaction  with  A. 

In  an  action  to  recover  damages  for  the  breach  of  a  written 
contract,  an  allegation  that  the  defendant  executed  the  con- 
tract is  an  operative  fapt,  material  and  issuable  ;  a  right  of 
action  can  not  be  asserted  without  it.  But  the  facts  that  the 
defendant  admitted  the  execution  of  the  contract,  that  an- 
other saw  him  sign  it,  and  tliat  another  will  testify  that  the 
signature  is  his,  are  evidential   facts,  and  do  not  enter  into 


§  187  ORDERLY  PARTS  OF  PLEADING.  168 

the  plaintiff's  right.  A  denial  of  the  operative  fact  will 
thwart  the  plaintiff's  right,  and  present  a  material  issue  ;  not 
so  as  to  the  evidential  facts.  If  the  operative  fact  be  modi- 
fied, disproved,  or  abandoned,  the  right  of  action  will  dis- 
appear ;  but  the  probative  facts  may  be  varied,  or  they  may 
be  abandoned  and  others  resorted  to,  without  affecting  the 
remedial  right.^ 

187.  Operative  and  Evidential  Facts,  Continued. — 
One  distinction  between  operative  facts  and  evidential  facts 
is,  that  the  former  are  issuable,  while  the  latter  are  not.  In 
the  example  of  sale  just  given,  a  denial  of  any  of  the  oper- 
ative facts,  if  sustained,  would  defeat  the  action  of  A.  A 
denial  that  there  was  a  sale,  or  that  the  credit  had  expired, 
would  present  a  material  issue ;  and  an  allegation  of  pay- 
ment would  be  a  good  defense.  But  the  fact  of  B.'s  admis- 
sion might  be  denied,  and  the  denial  sustained,  and  yet  A.'s 
right  of  action  would  not  be  affected  thereby. 

In  an  action  to  restrain  the  execution  of  a  tax  deed,  ou  the 
ground  that  requisite  preliminary  proceedings  had  not  been 
had,  the  plaintiff,  instead  of  alleging  that  such  proceedings 
were  not  had,  averred  only  that  he  had  searched  in  the 
proper  offices,  and  failed  to  find  any  evidence  that  they  were 
had.  A  traverse  of  this  averment  would  present  an  entirely 
immaterial  issue,  to  wit,  whether  he  had  searched  and  failed 
to  find  the  evidence. ^  The  fact  here  averred  was  a  proba- 
tive fact,  that  might  have  been  used  in  evidence  to  sustain 
an  allegation  of  the  ultimate,  operative  fact — the  absence  of 
specified  requisite  preliminary  proceedings. 

If,  in  trover,  the  plaintiff  alleges  property  in  the  goods, 
the  loss,  the  finding,  and  a  demand  and  refusal,  omitting  an 
allegation  of  conversion,  the  declaration  is  ill ;  for  the  de- 
mand and  refusal  are  only  evidence  of  a  conversion,  which  is 
the  gist  of  the  action.^ 

An  allegation  that  A.  and  B.  are  partners  is  an  allegation 

'  Pom.   Rem.  526.     The   distinc-        *  Rogers  v.  Milwaukee,  13  Wis. 
tion  between  an  ultimate  fact  and  a    610. 
conclusion  of  law  is  well  considered        '  Gould  PI.  iii.  166. 
bySEARLS,  C.,  in  Levins  V.  Rovegno, 
71  Cal.  273. 


jO'j  THE  COMPLAINT.  §188 

of  the  ultimate,  operative  fact.  The  facts  showing  the  form- 
ation of  a  partnership  are  evidential  facts,  not  to  be  pleaded.^ 
The  use  of  one's  name  in  connection  with  the  business  of  a 
firm — as  in  advertisements,  or  over  the  door,  or  on  cards — 
may  be  an  evidential  fact,  or  an  operative  fact,  according  to 
the  circumstances.  If  the  question  is  whether  such  person 
is  in  fact  a  partner,  such  use  of  his  name  is  an  evidential 
fact,  in  the  nature  of  an  admission  ;  but  if  the  claim  is,  not 
that  he  is  in  fact  a  partner,  but  that  he  has  by  such  means 
held  himself  out  as  a  partner,  and  that  such  use  of  his  name 
has  misled  somebody,  it  becomes  an  operative  fact  in  the 
nature  of  an  estoppel,  and  should  be  pleaded. 

An  allegation  of  purely  evidential  matter  in  a  complaint 
is  surplusage ;  it  is  not  admitted  by  failure  to  deny,  and  may 
be  stricken  out  on  motion. 

188.  Legal  and  Equitable  Causes  of  Action. — It  is 
supposed  by  some  that  greater  latitude  is  allowed  in  the 
statement  of  a  cause  for  equitable  relief,  than  in  the  state- 
ment of  a  cause  for  legal  relief.  It  is  true  that  in  the  early 
history  of  equity  procedure  the  tendency  was  to  permit  a 
full  and  sometimes  indiscriminate  statement  of  facts,  both 
operative  and  evidential,  and  not  always  excluding  conclu- 
sions of  law.  This  tendency  was  in  part  due  to  the  double 
purpose  of  the  bill  in  equity — the  statement  of  a  case  for 
relief,  and  for  the  examination  of  the  defendant  under  oath. 
But  under  tlie  Reformed  Procedure,  the  statement  of  a  cause 
of  action,  whether  legal  or  equitable,  is  limited  to  operative 
facts,  to  the  exclusion  of  evidence  and  of  law. 

In  actions  for  equitable  relief,  however,  the  facts  consti- 
tuting the  cause  of  action  may  be  more  numerous,  more  com- 
plex, and  more  involved,  than  in  an  action  for  legal  relief, 
and  may  therefore  require  a  much  more  extended  statement 
to  display  the  right  to  relief.  In  legal  causes  of  action,  the 
primary  right  is  generally  plain  and  simple,  calling  for  but  a 
single  act  or  forbearance,  and  the  delict  is  generally  of  the 
same  simple  and  single  nature  ;  while  in  equitable  causes  of 
action,   both   these  factors  may  be    intricate  and  complex. 

«  Ab.  PI.  Brief,  328  ;  Post,  347. 


§  189        ORDERLY  PARTS  OF  PLEADING.  170 

The  primary  right  may  arise  from  a  series  of  facts,  and  may 
demand  from  the  defendant,  not  a  single  act,  but  a  series  of 
acts  or  omissions. 

Again,  the  relief  obtainable  in  equitable  actions,  unlike 
the  simple  award  of  damages,  or  of  possession  of  specific  real 
or  personal  property,  obtainable  in  legal  actions,  may  be  of 
the  most  varied  and  complex  character,  requiring  a  corre- 
spondingly full  detail  of  facts  and  circumstances  to  show  the 
nature  and  extent  of  the  relief  to  which  the  plaintiff  is  en- 
titled. Such  facts,  essential  to  the  relief,  are  but  auxiliary 
to  the  right  to  be  enforced. 

Notwithstanding  this  requirement  of  more  extended  detail 
of  facts  to  display  the  full  remedial  right  in  actions  for 
equitable  relief,  the  fundamental  principle,  that  only  opera- 
tive facts — those  showing  the  right,  or  affecting  the  remedy 
— are  to  be  employed  in  stating  a  cause  of  action,  obtains  in 
equitable  as  well  as  in  legal  actions. 

189.  Collateral  Facts  to  be  Stated. — In  the  statement 
of  a  cause  of  action,  only  such  facts  as  are  legally  operative 
should  be  stated.  Sometimes,  however,  a  particular  act,  or 
particular  conduct,  would  be  indifferent,  but  for  the  accom- 
panying circumstances  or  collateral  facts.  Such  collateral 
facts,  when  necessary  to  give  effect  to  the  main  charge,  or 
to  make  other  facts  operative,  should  be  stated.  For  ex- 
ample, in  a  complaint  for  deceit,  or  for  keeping  a  vicious 
animal,  scienter,  being  requisite  to  make  the  representation 
in  the  one  case,  and  the  keeping  in  the  other,  wrongful  and 
actionable,  must  be  averred.  A  statement  that  defendant 
ran  his  wagon  against  plaintiff's,  does  not  show  that  the  act 
complained  of  was  culpatory  and  actionable.  It  may  have 
been  unavoidable  accident.  It  should  be  alleged  that  he 
willfully  or  negligently  did  the  act.  It  is  a  general  rule, 
that  where  one  complains  of  an  act  not  wrongful  per  se,  but 
which  may  be  entirely  consistent  with  good  faith  and  fair 
dealing,  he  must  state  the  collateral  facts  giving  to  it  a  dif- 
ferent character,  and  rendering  it  actionable.^  In  an  action 
on  a  foreign  contract,  valid  by  the  lex  loci  contractus,  but 

1  Hughes  V.  Murdock,  45  La.  Ann.  935  ;  s.  c.  13  So.  Rep.   182. 


171  THE  COMPLAINT.  §  190 

invalid  by  the  lex  fori,  both  the  place  and  the  law  of  the 
place  must  be  alleged.  Performance  of  conditions  precC' 
dent,  and  notice  and  demand,  when  necessary  to  create  a  lia- 
bility or  a  right  to  sue,  must  be  alleged.  When  special 
damages — those  in  fact  sustained,  but  not  implied  by  law — 
are  claimed,  the  facts  out  of  which  they  arise  must  be  stated.^ 
And  facts  in  aggravation  of  damages,  if  not  part  of  the  act 
complained  of,  and  if  separable  from  the  manner  of  doing 
such  act,  should  be  alleged.^  In  an  action  for  breach  of 
promise  of  marriage,  the  seduction  of  plaintiff  by  means  of 
the  promise  to  marry  can  not  be  shown  in  evidence,  to  en- 
hance the  damages,  unless  alleged  in  the  complaint.^ 

190.  Collateral  Facts,  Continued. — In  actions  for 
equitable  relief  touching  a  legal  right,  on  the  ground  that 
there  is  no  adequate  remedy  at  law,  if  such  ground  does  not 
appear  from  the  statement  of  the  right  and  the  delict,  it 
should  be  specially  averred  ;  otherwise,  the  complaint  would 
be  demurrable  for  want  of  equity.  Thus,  in  an  action  to 
prevent  destructive  trespass,  it  should  appear  that  the  injury 
would  be  irreparable  in  damages.  But  a  mere  allegation 
that  the  damages  would  be  irreparable  would  be  a  conclusion 
of  law,  and  not  sufficient.  The  facts  showing  the  inade- 
quacy of  a  judgment  at  law  should  be  stated  ;  for  example, 
that  the  trespasser  is  insolvent,  or  that  the  property  would 
be  permanently  ruined.* 

In  actions  for  slander,  wliere  the  words  are  not  actionable 
per  se,  but  are  so  by  reason  of  some  extrinsic  fact,  such 
extrinsic  fact  must  be  alleged.  And  where  one  is  defamed 
generally  in  regard  to  his  business  or  profession,  the  fact  that 
he  is  engaged  in  such  business  or  profession  is  an  extrinsic 
fact,  to  be  stated  in  his  complaint. 

In  actions  in  tort  for  breach  of  an  implied  duty  arising  out 
of  contract, — as   for  negligence  of  a  physician  or  of  an  attor- 

'  Post,  425  ;  Wilcox    v.    McCoy,     562  ;     Leavitt  v.   Cutler,     37  Wis. 
21  O.  S.  655;  Barrage  v,  Melson,  48    46. 
Miss.  237.  ^  Leavitt  v.  Cutler,  37  Wis.  46 ; 

«  Schofield  V.  Ferrers,  46  Pa.  St.     Cates  v.  McKinney.  48  Ind,  562. 
438  ;  Cates  v.   McKinney,  48  Ind.        "  Bisph.  Eq.  435-6  ;  Bliss  PI.  280, 

281. 


§  191  ORDERLY  PARTS  OF  PLEADING.  1Y2 

ney, — the  complainant  should,  in  addition  to  alleging  the 
contract,  the  negligence,  and  the  injury,  state  the  occupation 
of  the  defendant ;  otherwise,  it  will  not  appear  that  the  duty 
to  exercise  peculiar  skill  arose  by  implication  from  the 
contract.^ 

191.  Collateral  Facts,  Continued. — If  facts  ordinarily 
requisite  be  omitted  from  the  complaint  because  dispensed 
with  in  the  particular  instance,  the  facts  showing  the  reason 
for  the  omission  should  be  stated.  For  example,  where 
notice  has  not  been  given,  or  demand  has  not  been  made, 
because  waived  by  the  defendant,  such  waiver  must  be 
averred.  But  in  such  cases  care  should  be  taken  not  to 
anticipate  or  avoid  what  is  properly  matter  of  defense. 

When  it  appears  from  the  statement  of  the  cause  of  action 
that  the  action  is  subject  to  the  bar  of  the  statute  of  limita- 
tions, extrinsic  facts  that  will  save  it  from  such  bar,  if  such 
facts  exist,  should  be  averred  in  the  complaint.^  But  in 
some  jurisdictions,  where,  by  statutoiy  provision,  the  statute 
of  limitations  can  be  made  available  only  by  answer,  such 
extrinsic  facts  should  not  be  averred  in  the  complaint.^ 
Where  the  limitation  is  a  part  of  the  right  itself^  the  com- 
plaint should  show  that  the  action  is  brought  within  the 
prescribed  time.*     And  in  actions  under  a  statute  containing 

'  Bliss  PI.  150.  of  the  other.    If  we  concede  that  a 

'  Bliss  PI.  205  ;  Combs  v.  Watson,  statement  of  facts  all  of  which  are 

32  0.  S.  228.     This  rule,  which  is  requisite  to  the  statement  of  a  cause 

established  by  an  almost  unbroken  of  action,  and  which  is  on  its  face 

line  of  authority,  is,  apparently,  a  amenable  to  the  bar  of  the  statute, 

departure  from  the  true  principles  but  which  is  not  otherwise  faulty, 

of  pleading.     The  statutory  bar  is  is  demurrable  on  the  ground  that  it 

matter  of  defense,  and  is  a  personal  does  not  state  facts  snfficien  t  to  con- 

privilege  that  may  be  asserted,  and  stitute  a  cause  of  action,  we  must, 

that  is  waived  if  not  asserted.     To  by  parity  of  reasoning,  sanction  the 

avoid  it  by  averment,  before  it  can  introduction  of  extraneous  facts  to 

be  known  whether  it  will  be  as-  supply  the  conceded  defect.     The 

serted,  is,  it  would  seem,  toantici-  prime  error  is  in  the  concession, 

pate  a  defense.     But  in  those  juris-  Post,  336. 

dictions  where  the  statute  is  avail-  *  Butler  v.  Mason,  16  How.  Pr. 

able  on  general  demurrer,  the  rule  546. 

rests  upon   defensible  ground  ;  or  *  Davis  v.  Hines,  6  O.  S.  473,  Per 

rather,  the  one  rule  is  a  vindication  Brinkerhoff,  J. 


173  THE  COMPLAINT.  g  192 

an  exception,  as  distinguished  from  a  proviso,  the  complaint 
should  show  that  the  case  does  not  fall  within  the  excep- 
tion.^ 

192.  Gist,  Inducement,  and  Aggravation. — In  common- 
law  pleading,  all  matter  to  be  pleaded  is  (1)  of  the  gist  of 
the  complaint  or  defense,  or  (2)  is  matter  of  inducement,  or 
(3)  matter  of  aggravation.  The  gist  of  a  complaint  or  de- 
fense is  the  essential  ground  or  subject-matter  of  it — that 
without  which  no  right  of  action  could  appear  on  the  one 
hand,  and  no  legal  defense  on  the  other.  The  defendant's 
promise  in  assumpsit,  the  conversion  in  trover,  injury  to  the 
possession  in  trespass,  are  severally  of  the  gist  of  the  action  ; 
so,  also,  where  performance  of  a  condition,  the  giving  of 
notice,  or  the  making  of  demand  is  essential  to  the  right  of 
action,  averment  thereof  is  of  the  gist  of  the  compkiint. 
'  /  Matter  of  inducement  is  that  which  is  introductory  to  the 
essential  ground  of  the  complaint  or  defense,  or  which  is  nec- 
essary to  explain  or  elucidate  it.  The  loss  and  finding  in 
trover  is  matter  of  inducement ;  so,  also,  are  allegations  to 
show  capacity  of  parties.^ 
.1^  f  Matter  of  aggravation  is  that  which  tends  to  increase  the 
amount  of  damages,  but  does  not  affect  the  right  of  action. 
In  trespass  for  breaking  and  entering  a  house,  an  allegation 
that  defendant  expelled  plaintiff  and  destroyed  his  goods  is 
matter  of  aggravation  ;  the  breaking  and  entering  being  the 
whole  gist  of  the  action.^   \ 

The  practical  importance  of  this  classification  at  common 
law  is  in  the  fact  that  in  pleading  matter  of  inducement  and 
matter  of  aggravation  less  particularity  is  required  than  in 
pleading  matter  of  substance  \  and  matter  of  aggravation  is 
never  to  be  traversed.  /  It  is  sufficient,  as  matter  of  induce- 
ment, to  allege  that  plaintiff  is  ^luly  incorporated  under  the 
laws  of  a  given  state  ;]  but  if  corporate  existence  is  of  the  gist 
of  the  action,  the  grant  of  the  corporate  franchise,  its  accept- 
ance, and  regular  organization  thereunder,  should  be  alleged.^ 
In  trespass  for  chasing  sheep,  per  quod  the  sheep  died,  the 

1  Church  V.  Ry.  Co.,  6  Barb.  313;        »  Taylor  v.  Cole,  3  Term  Rep.  292. 
Walker  v.  Johnson,  2  McLean,  92  ; 
Post,  339. 


§  193  ORDERLY  PARTS  OF  PLEADING.  174 

dying  of  the  sheep,  being  aggravation   only,  is  not  travers- 
able. 

It  is  sometimes  said  that  traverse  is  not  to  be  taken  on 
matter  of  inducement.^  But  in  many  instances  matter  of  in- 
ducement is  in  itself  essential,  and  of  the  substance  of  the 
case  ;  in  such  instances  at  least,  whatever  the  general  rule, 
matter  of  inducement  is  traversable. 


(2)  THE  MANNER  OF  THE  STATEMENT. 

193.  Ordinary  and  Concise  Language. — The  statement 
of  facts  constituting  the  cause  of  action  is  to  be  "  in  ordi- 
nary and  concise  language."  This  means  that  the  statement 
should  be  neither  ornate  nor  prolix,  that  the  words  employed 
should  be  those  in  common  use,  and  that  the  manner  of  the 
statement  should  be  brief  and  compendious.  This  require- 
ment aims  at  strength  and  perspicuity,  rather  than  elegance 
of  expression.  Pompous  diction  would  be  out  of  place  in  a 
legal  paper  designed  to  lay  before  the  court  only  operative 
facts,  as  a  basis  for  judicial  action. 

In  the  common-law  pleadings,  much  attention  was  given 
to  the  form  of  the  statement.  The  authorized  forms  were  so 
prolix,  the  statement  so  verbose  and  involved,  and  the  facts 
relied  upon  were  so  obscured,  that  very  often  the  pleadings 
entirely  failed  to  disclose  the  operative  facts  to  be  proved  or 
disproved  upon  the  trial.  This  requirement?  of  the  reformed 
system  aims  to  banish  these  technical  forms  from  practice, 
and  to  substitute  a  statement  so  plain  and  concise  that 
parties  and  court  may  readily  see,  and  clearly  understand, 
what  facts  are  relied  upon,  and  to  what  facts  the  further  pro- 
ceedings are  to  be  directed. 

But  an  error  must  here  be  guarded  against.  It  must  not 
be  thought  that  "  ordinary  and  concise  language  "  is  an  in- 
different phrase,  dispensing  at  once  with  all  care  and  skill  in 
framing  the  statement.  On  the  contrary,  a  system  of  plead- 
ing that  dispenses  with  authoritative  forms,  and  requires 
each  case  to  proceed  upon  a  plain  statement  of  its  operative 

1  Steph.  PI.  294. 


175  THE  COMPLAINT.  §§194-195 

facts,  intensifies  the  necessity  for  a  clear  underetanding  of 
the  hiw  and  the  facts  of  a  case,  and  for  an  intelligent  and  ac- 
cui-ate  use  of  language  by  the  pleader.  Clearness  of  concep- 
tion and  accui'acy  of  expression  ai-e  of  the  very  essence  of 
good  pleading  under  the  Reformed  Procedure. 

lf)4.  The  Order  of  the  Statement. — At  common  law, 
tlie  pleadings  were  recjuired  to  observe  the  ancient  and  es- 
tablished forms  of  expression,  and  to  conform  to  the  approved 
precedents  ;  and  the  pleadings  subsequent  to  the  declaration 
had,  severally,  their  proper  formal  commencements  and  con- 
clusions.^  But  under  the  reformed  system,  there  is  no  pre- 
scribed form  or  order  in  which  the  facts  constituting  a  cause 
of  action  are  to  be  set  forth.  This  is  left  to  the  judgment 
and  intelligence  of  the  pleader.  Not  because  it  is  a  matter 
of  indifference,  for  it  is  not ;  but  because  no  form  or  order 
can  be  prescribed  for  displaying  rights  of  aation  tliat  must, 
in  the  nature  of  things,  be  as  diversified  as  are  the  jural  re- 
lations from  which  they  arise. 

It  was  a  just  reproach  to  the  common-law  procedure  that 
it  required  great  strictness  in  matters  of  form,  and  allowed 
much  looseness  in  matters  of  substance.  It  is  a  distinguish- 
ing achievement  of  the  Reformed  Procedure  that  matter  of 
form  is  made  subservient  to  matter  of  substance.  In  the 
complaint,  as  in  all  the  pleadings,  controlling  consideration 
is  given  to  the  substance  of  the  statement,  rather  than  to  the 
mere  form  thereof ;  and  the  instances  are  numerous  in  every 
jurisdiction,  where  mere  matter  of  form  is  disregarded  in  the 
interest  of  justice  and  of  economy  to  suitors. 

195.  Joinder  of  Causes  of  Action. — Where  a  plaintiff  has-  ^tito  Jft 
several  distinct  rights  of  action  against  the  same  person,  he  'f  .^^  uq  j. 
may  pursue  them  in  one  action ;  subject,  however,  to  certain 
restrictions  as  to  the  union  of  separate  causes  of  action  in 
one  complaint.  The  general  rule  to  be  gathered  from  the 
several  statutory  provisions,  is,  that  several  causes  of  action 
may  be  joined  in  the  same  complaint,  when  the  several  rights 
of  action  all  arise  out  of  (1)  the  same  transaction,  or  transac- 
tions connected  with  the  same  subject  of  action ;  or  (2)  con- 

'  Ante,  136. 


§196        ORDERLY  PARTS  OF  PLEADING,  17^ 

tract,  express  or  implied ;  or  (3)  injuries,  with  or  without 
force,  to  person  and  property,  or  to  either;  or  (4)  injuries  to 
character ;  or  (5)  claims  to  recover  personal  property,  with 
or  without  damages  for  the  withholding  thereof ;  or  (6) 
claims  to  recover  real  property,  with  or  without  damages  for 
the  withholding  thereof,  and  the  rents  and  profits  of  the 
same  ;  or  (7)  claims  against  a  trustee,  by  virtue  of  a  con- 
tract, or  by  operation  of  law. 

The  causes  of  action  so  united  must  all  belong  to  some 
»ne  of  these  classes  ;  must  not  require  different  places  of  trial ; 
must  affect  all  the  parties  to  the  action ;  and  must  be  separ- 
ately stated.! 

196.  Joinder  of  Causes — Same  Transaction. — Two  dif- 
ficulties, and  only  two,  are  likely  to  arise  in  the  application 
of  the  foregoing  provisions.  The  first  is,  the  danger  of  con- 
founding the  reliefs  prayed  for  with  the  causes  of  action  upon 
which  they  are  based.  This  danger  may  be  avoided  by  the 
exercise  of  care  and  discrimination,  remembering  that  the 
prayer  for  relief,  while  a  requisite  of  the  complaint,  is  no  part 
of  the  cause  of  action. 

The  other  difficulty  likely  to  arise  is  in  the  joinder  of 
causes  of  action  upon  rights  that  arise  out  of  the  same  trans- 
action, or  transactions  connected  with  the  same  subject  of 
action.  This  provision  is  broad  and  comprehensive.  The 
term  "  transaction  "  has  no  technical  meaning,  and  was  prob- 
ably used  in  the  codes  for  that  reason  ;  the  purpose  being, 
to  avoid  a  multiplicity  of  suits  between  the  same  parties. 

A  cause  of  action  is  a  statement  of  operative  facts  showing 
a  right  and  a  delict.  When  the  operative  facts  of  one  trans- 
action create  two  or  more  primary  rights  in  one  party  to  the 
transaction,  and  also  show  violations  thereof  by  the  other 
party,  then  two  or  more  rights  of  action  have  arisen  out  of 
such  transaction,  and  separate  causes  of  action  thereon  may 
be  united  in  one  complaint.  Again,  if  several  rights  of 
action — several  primary  rights  of  plaintiff,  and  corresponding 
delicts  of  defendant — arise  out  of  different  transactions,  several 
causes  of  action  thereon  may  be  joined  in  one  complaint,  if 

'  Pom.  Rem.  438  ;   Bliss  PI.  112  ;  Boone  PL  37. 


177  THE  COMPLAINT.  §§  197-108 

the  several  transactions  are  connected  with  the  same  subject 
of  action. 
197.  Joinder  of  Causes — Same  Subject  of  Action.— The 

meaning  of  "-subject  of  action  "  is  not  authoritatively  settled. 
It  does  not  mean  the  right  of  action,  or  the  object  of  the  ac- 
tion. It  has  been  interpreted  as  synonymous  with  "  subject- 
matter  of  the  action."  ^  But  the  subject-matter  of  an  action^ 
especially  when  used  with  reference  to  jurisdiction,  means  the 
right  asserted  by  the  plaintiff,  and  upon  which  he  demands 
the  judgment  of  the  court.^  It  has  been  held  to  mean  the 
primary  right  of  plaintiff  which  has  been  invaded  by  tlie  de- 
fendant.^ These  definitions,  which  do  not  materially  differ, 
would  require  the  "  subject  of  action  "  to  be  common  to  all 
the  several  causes  of  action  to  be  joined  ;  while  in  fact  it  can 
not  be  common  to  the  causes  of  action,  but  must  be  common 
to  the  several  transactions  out  of  which  the  several  rights  of 
action  arise.  The  "  subject  of  action  "  is  one  single  thing,  a 
unit ;  the  transactions  connected  therewith  are  plural ;  and 
the  rights  of  action  arising  therefrom  may  be  various.  Again, 
by  "subject  of  action"  can  not  be. meant  the  primary  rights 
of  plaintiff,  for  these  are  two  degrees  removed  from  each 
other  by  the  intervention  of  the  "  transactions."  The  rights 
of  action  are  product  of  the  different  transactions,  and  the 
different  transactions  must  be  connected  with  the  subject  of 
action.  Perhaps  no  definite  and  invariable  exposition  of  the 
meaning  of  these  terms  can  be  made,  aside  from  their  applica- 
tion in  individual  cases  as  they  arise. 

198.  Joinder  of  Causes — Necessary  Averments. — When 
causes  are  united  because  they  arise  out  of  the  same  transac- 
tion, or  out  of  transactions  connected  with  the  same  subject 
of  action,  if  the  facts  showing  such  common  origin,  or  such 
connection,  do  not  appear  in  the  narration  of  operative  facts, 
they  should  be  stated,  in  order  that  the  right  to  join  may 
appear.  A  mere  allegation  that  the  causes  arose  out  of  the 
same  transaction  is  not  sufiQcient.* 

'  Pom.  Rem.  475.  *  Flynn  v.  Bailey,  50  Barb.  73  : 

3  Post,  462.  Woodbury  v.  Deloss,  65  Barb.  501. 

*  Scarborough  v.  Smith,  18  Kan. 
390. 

12 


J,  199        ORDERLY  PARTS  OF  PLEADING.  l^g 

199.  Joinder  of  Causes — Application  of  Rule. — Under 

these  provisions  for  the  joinder  of  several  causes  in  one  ac- 
tion, causes  of  action  in  their  nature  legal  or  equitable,  or 
botli  legal  and  equitable,  may  be  joinedj;  and,  contrary  to 
the  conimon-iaw  rule,  causes  arising  ex  delicto  may  be  joined 
with  those  arising  ex  contractu^  if  they  have  a  common  origin 
in  one  transaction,  or  in  transactions  connected  with  the  same 
subject  of  action. 1  Causes  for  malicious  prosecution  and  for 
false  imprisonment ;  ^  for  breach  of  contract  and  for  personal 
injury ;  ^  for  slander  and  for  malicious  prosecution  ;  *  for 
breach  of  express  contract  and  for  money  had  and  received  ; 
for  trespass  to  person  and  to  property  ;  ^  and  for  specific  per- 
formance and  for  damages,^  are  joinable. 

A  claim  for  specific  relief  incidental  or  preliminary  to  the 
main  object  of  the  suit  may  be  joined  therewith,  when  arising 
out  of  the  same  transaction.  Claims  to  set  aside  a  convey- 
ance as  fraudulent,  to  determine  adverse  claims  to  the  prop- 
erty, and  to  recover  possession,  with  rents  and  profits  ;  "^ 
claims  for  the  recovery  of  real  property,  for  rents  and  profits, 
and  for  partition ;  ^  causes  for  injury  from  the  overflow  of  a 
dam,  and  for  injunction  to  restrain  its  maintenance  ;  ^  and 
causes  to  set  aside  a  release  of  damages  for  injury,  and  for  the 
recovery  of  the  damages,^*^  may  be  joined  in  one  action. 

The  causes  of  action  joined  in  one  complaint  must  not  be 
inconsistent  with  each  other.  This  is  a  logical  requirement, 
and  one  not  generally  expressed  in  the  codes.  A  demand  for 
an  agreed  price  for  work,  and  one  for  the  reasonable  value  of 
the  same  work,  are  inconsistent ;  ^^    though  there  is  authority 


1  Barr  v.   Shaw,   10    Hun,   580  ;  «  Worrall  v.  Munn,  38  N.  Y.  137, 
Jones  V.  Cortes,  17  Gal.  487  ;  Swan,  141. 

J.,  in  Sturges  v.  Burton,  8  O.  S.  '  Pfister  v.  Dascey,  65  Gal.  403; 

218.  Bank  v.  Newton,  13  Col.  245. 

2  Barr  v.   Shaw,    10    Hun,   580  ;  ^  Scarborough  v.  Smith,  18  Kan. 
Krug  V.  Ward,  77  111.  603.  399. 

3  Jones  V.  Cortes,  17  Cal.  487.  »  Akin  v.  Davis,  11  Kan.  580. 

<  Shore  v.   Smith,  15  O.  S.   173  ;  i"  Blair  v.  Ry.  Co.,  89  Mo.  383. 

Harris  v.  Avery,  5  Kan.  146.  ^"^  Plummer  v.  Mold,  22  Minn.  15  ; 

'  Dillon,  J.,  in  Holmes  v.  Sheri-  Hewitt  v.  Brown,  21  Minn.  163. 
dan,  1  Dillon,  351. 


179  THE  COMPLAINT.  g2  00 

for  uniting  such  causes,  where  neither  can  safely  be  relied 
upon  alone.^ 

200.  Joinder  of  Canses — Application  of  Rule,  Con- 
tinued.— Causes  of  action,  to  be  joinable,  nmst  each  affect  all 
the  parties  to  the  action.  If,  therefore,  all  the  parties,  plaintiff 
and  defendant,  are  not  affected  by  each  cause  of  action,  there 
is — except  in  foreclosure  suits — misjoinder  of  causes,  and  de- 
murrer for  this  cause  will  lie.  Separate  claims  by  two  plaintiffs, 
against  one  defendant,  growing  out  of  the  same  transaction, 
are  not  joinable.^  Nor  may  a  wrong  to  a  firm,  and  a  wrong 
to  one  member  thereof ;  ^  or  a  claim  against  two  defendants, 
and  a  claim  against  one  of  them,*  be  joined. 

Where  the  owner  of  a  lot  caused  excavation  to  be  made 
in  and  under  the  sidewalk  in  front  of  his  lot,  and  plaintiff 
fell  into  the  excavation  and  was  injured,  it  was  held  that 
although  the  lot-owner  and  the  city  were  both  liable,  they 
could  not  be  joined.^  In  such  case,  the  liability  of  the  city 
depends  upon  a  state  of  facts  not  affecting  the  lot-owner; 
and  the  converse.  They  did  not  jointly  conduce  to  the  in- 
jury by  acts  either  of  omission  or  of  commission.  A  claim 
against  one  for  erecting  a  dam,  and  against  his  grantee  for 
continuing  it;  ^  and  claims  against  successive  tenants  for 
respectively  maintaining  the  same  nuisance,'^  are  not  join- 
able.  Several  owners  of  different  animals  can  not  be  joined 
in  one  action  for  trespass  by  the  animals.^      And  causes  of 

'  Wilson  V.  Smith,  61  Cal.  209  ;  «  Hines  v.  Jarrett,  26  S.  C.  480. 

Post,  208.  '  Green  v.  Nunnemacher,  86  Wis. 

'  Bort  V.  Yaw,  46  Iowa,  323.  50. 

'  Taylor  v.  Ry.  Co.,  53  Hun,  305.  ^  Cogswell  v.  Murphy,  46  Iowa, 
■*  Doan  V.  Holly,  25  Mo.  357.  44.  In  such  case,  each  owner  is 
'  Trowbridge  v.  Forepaugh,  14  not  liable  for  the  aggregate  tres- 
Minn.  133.  Cf.  Bateman  v.  St.  Ry.  pass,  though  done  by  all  the  ani- 
Co.,  5  N.  Y.  Supp.  13,  where  it  was  mals  together  ;  for,  in  legal  con- 
held,  by  the  Common  Pleas  of  New  templation,  there  is  a  separate 
York  City,  that  in  an  action  against  trespass  on  the  part  of  each.  Van 
the  city  for  injury  caused  by  its  Steenburgh  v.  Tobias,  17  Wend, 
neglect  to  keep  the  street  in  repair,  562;  Auchmuty  v.  Ham,  1  Denio, 
and  against  the  railway  company  495  ;  Partenheimer  v.  VanOrder, 
which  had  agreed  with  the  muni-  20  Barb.  479.  Where  persons  join 
cipality  to  keep  it  in  repair,  there  in  wrong  doing,  there  is  inten- 
was  not  a  misjoinder  of  causes.  tion  and   volition   on  tlie  part  of 


§  201        ORDERLY  PARTS  OF  PLEADING.  180 

action  against  principal  and  sureties,  on  two  official  bonds, 
one  being  an  additional  bond,  both  given  for  the  same  term 
of  office,  but  with  different  sureties,  can  not  be  joined.  ^ 

Where  one  is  a  party  in  two  capacities,  there  is  misjoinder, 
unless  each  cause  of  action  affects  him  in  both  capacities.  A 
personal  claim  or  liability  can  not  be  joined  with  one  in  a  rep- 
resentative capacity .2  Demands  against  a  common  guard- 
ian for  maintenance  of  several  wards  can  not  be  joined.^  A 
cause  of  action  against  an  administrator  on  his  promise  as 
such  administrator,  and  a  cause  against  him  on  a  promise  of 
his  intestate,  may  be  joined,  provided  both  causes  require  the 
same  judgment.*  There  can  not  be  two  different  judg- 
ments, one  de  bonis  propriis  and  another  de  bonis  testatoris, 
in  one  action  ;  and  this  is  said  to  be  a  test  in  the  matter  of 
the  joinder  of  causes.^ 

201.  Joinder  of  Causes— Consequences  of  Misjoinder. 
— When  causes  of  action  that  are  not  properly  joinable  are 
it  ^O  L^  united  in  one  complaint,  the  misjoinder,  if  apparent  upon  the 
face  of  the  complaint,  may  be  objected  to  by  demurrer ;  if 
not  so  apparent,  the  objection  may  be  made  by  answer.  If 
causes  not  joinable  be  not  only  joined  in  the  same  action,  but 
combined  in  a  single  statement,  instead  of  being  separately 
stated,  the  defendant  may  nevertheless  demur  for  the  mis- 
joinder, though  such  complaint  would  also  be  amenable  to  a 
motion  to  require  the  causes  therein  to  be  separately  stated  ;  ^ 
and  for  convenience  and  certainty  it  is  the  better  practice 
first  to  have  the  confused  allegations  separated,  so  that  the 
several  causes  may  distinctly  appear,  and  then  to  demur  for 

each.     Not  so,  where  one's  animals  '■'  Martens  v.  Loewenberg,  69  Mo. 

co-operate  with  those  of  another.  208  ;  Brown  v.  Webber,  6  Cush.  560. 

In  such  case,  each  owner  is  Hable  *  Orphan  Society  v.  Wolpert,  80 

for  the    injury  done  by    his  own  Ky.  86. 

animals,  and  for  no  more.     Auch-  *  Howard  v.  Powers,  6  Ohio,  93. 

muty  V.  Ham,  1   Denio,  495.     And  *  Per  Tilghman,  C.  J.,  in  Malin 

in  the  absence  of  proof,  the  law  v.  Bull,  13  Serg.  &  R.  441. 

will    infer  that    the    animals   did  «  Wiles  v.  Suydam,  64  N.  Y.  173 ; 

equal   damage.      Partenheimer  v.  Liedersdorf  v.  Bank,  50  Wis.  406 ; 

VanOrder,  20  Barb.  479.  Wright  v.   Connor,  34  Iowa,  240  ; 

1  Holeran  v.  School  Dist.,  10  Neb.  Per  Church,  C.  J.,  in  Goldberg  y 

406.  Utley,  60  N.  Y.  427. 


181  THE  COMPLAINT.  §202 

the  misjoinder.  In  such  case,  the  motion  goes  to  the  infor- 
mality of  the  union,  and  the  demurrer  to  the  fact  of  the 
union. 

When  a  misjoinder  is  found,  either  upon  demurrer  or  upon 
answer,  the  action  may  be  divided  and  several  complaints 
filed,  making  as  many  independent  suits  as  should  have 
been  brouglit  originally ;  ^  or  the  plaintiff  may  be  required  to 
elect  upon  which  cause  of  action  he  will  proceed. 

Misjoinder,  being  a  defect  of  form,  and  not  of  substance, 
is  waived,  if  not   objected  to   by  demurrer  or  by  answer.^ 

202.  Causes  to  be  Separately  Stated. — When  two  or 
more  causes  of  action  are  joined  in  one  complaint,  they  must 
be  separately  stated  ;  and  in  most  states  they  are  required  to 
be  consecutively  numbered.  The  joinder  of  causes  is  not  a 
requirement  of  pleading ;  it  is  a  privilege  intended  for  the 
convenience  and  economy  of  suitors.  But  the  separate  state- 
ment of  causes,  when  joined,  is  an  imperative  requirement. 
Each  cause  must  not  only  be  set  forth  in  a  separate  and  dis- 
tinct division  of  the  complaint,  but  it  must,  of  itself,  be  a 
complete  and  independent  cause  of  action.  These  separate 
divisions  are  sometimes  designated  by  the  common-law  term 
"count;"  in  a  few  states  they  are  termed  "paragraphs;'* 
but  they  are  generally,  and  more  properly,  called  "causes  of 
action." 

Such  separate  statement  of  causes  is  clearly  indispensable 
to  an  orderly  system  of  pleading.  In  no  other  way  can  the 
legal  sufficiency  of  any  one  cause  be  tested  by  demurrer ;  in 
no  other  way  can  different  defenses  be  made  to  the  different 
causes ;  in  no  other  way  can  separate  and  distinct  issues  be 
made  or  tried ;  in  no  other  way  can  the  introduction  of 
evidence  be  intelligently  conducted  ;  and  in  no  other  way 
can  the  record  be  made  clearly  to  show  what  matters  have 
been  adjudicated,  and  how  decided.  The  provision  for  the 
joinder  of  distinct  demands  in  one  action  is  for  the  conveni- 


'  Per  Brewer,  J,,  in  Houston  v.  54  ;  Berry  v.  Carter,  19  Kan.  135 ; 

Delahay,  14  Kan.  125.  Jones    v,    Hughes,    16    WLs.    683 ; 

•^  McCarthy  v.  Garroghty,  10  O.  Marius  v.  Bickwell,  10  Cal.  217. 
S.  438  ;  Turner  v.  Althaus,  6  Neb. 


§  203  ORDERLY    PARTS  OF  PLEADING.  182 

ence  and  economy  of  litigants,  and  its  object  may  be  promoted 
by  liberality  in  its  application;  but  the  requirement  that 
causes  of  action,  when  joined,  shall  be  separately  stated,  is  to 
enhance  the  certainty,  the  precision,  and  the  safety  of  pro- 
cedure, and  its  object  can  be  promoted  only  by  enforcing 
it  with  reasonable  strictness.  "  To  secure  the  simplicity 
and  terseness  exacted  by  the  codes,  it  is  essential  that  differ- 
ent causes  of  action  be  disassociated,  and  that  reiteration  be 
avoided."  ^ 

203.  Adopting  in  One  Cause,  Statements  in  An- 
other.— Each  separate  statement  must,  of  itself,  be  a  com- 
plete cause  of  action.  If  the  same  allegation  is  a  requisite 
of  two  or  more  of  the  separate  statements,  it  must  be  inserted 
in  each ;  for  an  allegation  in  one  can  not  be  treated  as 
suppljang  an  omission  in  another.^  But  the  maxim  that 
words  in  one  instrument  may  be  incorporated  in  another  by 
reference — verba  relata  inesse  videntur — applies  to  the  separate 
divisions  of  a  pleading ;  and  statements  in  one  cause  of 
action  may  be  incorporated  in  another,  by  apt  words  of  ref- 
erence and  adoption  therein. ^  A  single  copy  of  an  instru- 
ment may  be  referred  to  as  an  exhibit,  in  different  causes  of 
action,  or  in  different  defenses.*  And  an  instrument  set  out 
in  a  complaint  may,  in  this  way,  be  made  part  of  a  cross- 
complaint.^  Where  several  causes  of  action  are  founded 
upon  an  instrument,  a  copy  of  which  is  required  to  be  filed 
with  the  pleading,  and  but  one  copy  is  filed,  each  cause  of 
action  should  refer  to  the  copy  as  filed  with  that  cause  of 
action.^  Reference  to  allegations  in  a  former  cause  of  action 
by  the  phrase  "  as  aforesaid,"  is  sufficient,  if  the  matter  so 

1  Per    Collins,  J.,   in  West    v.  Freeland  v.   McCullough,   1    Den. 

Imp.  Co.,  40  Minn.  394.     Cf.  Gold-  414  ;  Beckwith  v.  MoUohan,  2  W. 

berg  V.  Utley,  60  N.  Y.  427.  Va.  477. 

*  Farris  v.  Jones,  112  Ind.  498  ;  ■*  Maxwell  v.  Brooks,  54  Ind.  98  ; 

Smith  V.  Little,  67  Ind.  549  ;  Davis  Hockstedler  v.    Hockstedler,    108 

V.  Robinson,  67  Iowa,  355  ;  Catlin  Ind.  506. 

V.  Pedrick,  17  Wis.  88  ;  Barlow  v.  *  Coe  v.  Lindley,  32  Iowa,  437 ; 

Burns,   40    Cal.    351;    Haskell  v.  Pattison  v.  Vaughan,  40  Ind.  253; 

Haskell,  54  Cal.  262  ;  Boeckler  v.  Craigin  v.  Lovell,  88  N.  Y.  258. 

Ry.  Co.,  10  Mo.  App.  448.  «  Peck  v.  Hensley,  21  Ind.  344. 

3  Dorr  V.  McKinney,  9  Allen,  359  ; 


l^-^  THE  COMPLAINT.  §§  204-205 

referred  to  is  thereby  plainly  identified.^  So,  the  phrase 
"  of  and  concerning  the  action  tried  as  aforesaid,"  has  been 
held  a  sufficient  reference ;  ^  so  also,  the  phrase  "on  the  day 
and  year,  and  at  the  place  last  aforesaid."  ^ 

204.  Certain  Allegations  Not  to  he  Repeated. — Some 
statements  of  fact  may  be  a  requisite  part  of  the  complaint, 
bat  not  of  the  cause  of  action.  Such  are,  facts  to  show  the 
capacity  of  the  parties,  the  character  in  which  persons  are 
made  parties,  or  the  jurisdiction  of  the  court.  All  such 
matters  may  be  stated  but  once,  and  need  not  be  repeated  in 
each  separate  cause  of  action.*  Sometimes,  however, — and 
the  practice  is  in  good  taste, — such  statements  are  grouped  at 
the  beginning  of  the  complaint,  and  made  part  of  each  cause 
of  action.  Thus  :  "  As  a  part  of  each  cause  of  action  herein, 
the  plaintiff  says  : — "  Here  add  the  facts  referred  to,  and 
follow  these  with  the  several  causes  of  action,  separately 
stated  and  numbered.^ 

The  pra3'er  for  relief,  being  a  requisite  of  the  complaint, 
bill  not  of  the  cause  of  action,  a  single  prayer,  at  the  close  of 
tlie  complaint,  is  all  that  is  required.^  It  has  been  held  that 
statements  in  a  cause  of  action  that  has  been  abandoned  may 
yet  be  considered  in  aid  of  others,'''  when  properly  referred  to 
therein. 

205.  Several  Grounds  for  Single  Relief. — In  determin- 
ing whether  there  should  be  a  single  cause  of  action,  or 
several,  care  must  be  taken  not  to  confound  the  right  of 
action  and  the  relief  to  be  obtained.  The  two  guiding 
principles  are,  (1)  that  for  each  distinct  right  of  action  there 
must  be  a  separate  statement,  or  cause  of  action,  and  (2) 'that 
the  prayer  for  relief,  though  part  of  the  complaint,  is  no 
part  of  the  cause  of  action.     A  single  right  of  action  may 

'  Beckwith  v.    MoUohan,   2  W.  v.  Robbins,  13  Mass.    284  ;   Aben- 

Va.  477.  droth  v.  Boardley,  27  Wis.  555. 

»  Crookshank  v.  Gray,  20  Johns.  ^  West  v.  Imp.  Co.,  40  Minn.  394. 

344.  «Larkin  v.  Taylor,  5  Kan."  433; 

3Rathbun  v.   Emigh,   6  Wend.  Spears  v.  Ward,  48  Ind.  541. 

407.  '  Jones  v.  Van  Zandt,  5  McLean, 

<  Bank  V.  City,  74  Mo.  104  ;  West  214. 
V.  Imp.  Co.,  40  Minn.   394  ;  Rider 


§206  ORDERLY  PARTS  OF  PLEADING.  184 

entitle  the  plaintiff  to  several  kinds  of  relief,  and  several 
rights  of  action  may  authorize  but  a  single  relief. 

One  may  have  several  distinct  grounds  of  recovery,  each 
complete  of  itself,  arising  out  of  the  same  transaction,  and 
may  be  entitled  to  but  one  recovery  thereon.  In  the  sale  of 
a  horse,  the  vendor  may  make  both  a  false  warranty  and  a 
false  representation,  and  thus  become  liable  to  the  vendee 
for  the  deceit,  and  for  the  breach  of  warranty ;  and  the 
vendee  would  correspondingly  have  two  grounds  of  recovery, 
but  would  be  entitled  to  only  one  relief,  in  damages.  The 
vendee  in  such  case  can  maintain  an  action  based  upon 
either  right  of  action  alone,  or,  since  both  rights  of  action 
arise  out  of  the  same  transaction,  he  may  base  his  action 
upon  both  grounds,  stating  them  in  separate  causes  of  ac- 
tion.^ One  of  these  two  rights  of  action  would  arise  from 
tort,  the  other  from  contract.  A  cause  of  action,  to  display 
the  one  right,  must  assert  the  falsity  and  the  materiality  of 
the  representation,  reliance  upon  it,  the  scienter  and  the 
intent  of  the  defendant,  and  that  plaintiff  was  misled ;  where- 
as, to  display  the  other  right,  only  the  warranty  and  the 
breach  are  to  be  asserted.^ 

A  complaint  for  horses  killed  by  the  defendant's  train 
contained  two  causes  of  action  ;  one  alleging  neglect  to  keep  a 
fence  in  repair  as  required  by  contract,  and  the  other  alleg- 
ing negligence  in  running  the  train.  It  was  held,  that  there 
were  two  rights  of  action, — one  for  breach  of  contract,  and 
the  other  for  a  tort, — and  that  the  plaintiff  should  not  be 
required  to  elect.^  Here  were  two  independent  culpatory 
acts,  or  delicts,  and  but  one  right — the  right  of  property — 
invaded. 

206.  Duplicate  Statement  of  One  Right  of  Action. — 
At  common  law,  it  was  familiar  practice  to  set  forth  a  single 
right  of  action  in  two  or  more  counts,  in  different  forms,  in 

'  Pom.  Rem.  467  ;  Humphrey  v.  Sweet    v.  Ingerson,  12  How.  Pr. 

Merriam,  37  Mimi.  503 ;  Robinson  331. 

V.  Flint,  7  Abb.   Pr.  393;  Murphy  '  Bliss  PL  120,  292;  Pom.  Rem. 

V.  McGraw,  74  Mich.  318  ;  Freer  v.  467  ;  Abb.  PI.  Br.  86  ;  Williams  v. 

Denton,  61  N.  Y.  492.     Cf.  Spring-  Lowe,  4  Neb.  882. 

steed  V.  Lawson,  14  Abb.  Pr.  328 ;  »  Ry.  Ck).  v.  Hedges,  41  O.  S.  233. 


135  THE  COMPLAINT.  §207 

the  same  declaration.  This  was  done  in  order  that  some  one 
of  the  counts  might  correspond  with,  and  be  supported  by, 
the  evidence  upon  the  trial,  and  in  this  way  avoid  a  variance ; 
the  rule  being,  that  if  the  proof  sustained  the  case  laid  in  any 
one  count  there  could  be  a  recovery  upon  that  count,  though 
there  should  be  a  failure  of  proof  as  to  all  the  other  counts.^ 
In  equity,  when  there  was  uncertainty  as  to  the  ground  of 
recovery,  it  was  the  practice  to  accommodate  the  statement 
of  the  case  to  the  possible  state  of  the  proof  by  an  alterna- 
tive statement,  in  accordance  with  the  facts  of  the  claim.^ 

The  needless  multiplication  of  counts  in  common-law 
pleading  had  grown  to  be  burdensome,  and  the  Reformed 
Procedure  undertook  to  correct  this  abuse,  by  requiring  only 
the  operative  facts  to  be  stated,  as  they  actually  occurred, 
and  without  unnecessary  repetition.  Under  this  new  proced- 
ure, each  separate  statement  is  intended  to  set  forth  a  dis- 
tinct and  independent  right  of  action  ;  and  the  rule  is,  that 
a  plaintiff  having  but  one  right  of  action  is  not  permitted  to 
set  it  forth  in  two  or  more  different  forms.^ 

207.  Duplicate  Statement,  Continued. — The  rule  just 
stated  is  not  an  inflexible  rule,  and  is  sometimes  made  to 
yield  to  the  demands  of  justice ;  for  it  is  a  distinguishing 
merit  of  the  Reformed  Procedure,  that  it  makes  formal  re- 
quirements subservient  to  the  rights  of  parties  and  the  ends 
of  justice.  The  reformed  system  is  a  substitute  for  both  com- 
mon-law pleading  and  equity  pleading ;  it  has  not  taken  away 
an}^  right ;  it  has  affected  only  the  manner  of  stating  a  right. 
A  plaintiff  may,  in  a  complaint  under  the  code,  state  any  right 
of  action,  with  demand  of  appropriate  relief,  that  he  might 
formerly  state  in  a  declaration  at  law,  or  in  a  bill  in  chancery. 
If  a  plaintiff  has  two  distinct  grounds  for  a  single  recovery,  he 
may  now,  as  before,  make  both  grounds  available  in  one 
action ;  and  so,  if  he  has  but  a  single  right  of  action,   resting 

1  3  Bl.  Com.  295  ;  Gould  PI.  iv.  ^  Sturgess  v.  Burton,  8  O.  S.  215  ; 

4,  5,  6,  Ferguson  v.  Gilbert,  16  O.  S.   88, 

'  Bennett  v.  Vade,  2  Atkins,  324  ;  91 ;  Ford  v.  Mattice,  14  How.  Pr. 

Williams   v.   Flight,  5   Beav.    41  ;  91  ;  Fern  v.   Vanderbilt,    13  Abb. 

Rawlings  v.  Lambert,  1  J.  &  Hem.  Pr.  72. 
458,  466  ;  Cooper's  Eq.  PI.  14. 


§  207        ORDERLY  PARTS  OF  PLEADING.         186 

upon  one  or  the  other  of  two  grounds,  and  can  not  foreknow 
which  ground  may  be  established  by  the  evidence,  he  ought 
to  be  allowed,  now  as  formerly,  so  to  frame  his  complaint  as  to 
adapt  it  to  the  possible  state  of  the  proof,  if  this  can  be  done 
without  embarrassment  to  the  defendant. 

In  many  of  the  more  recent  cases,  this  view  has  obtained, 
as  being  at  once  the  more  rational,  more  conducive  to  the 
ends  of  justice,  and  consistent  with  the  spirit  and  purpose  of 
the  Reformed  Procedui-e  ;  and  it  may  safely  be  said  that  the 
true  rule,  resting  upon  principle,  and  supported  by  the  weight 
of  authority,  now  is,  that  where  a  plaintiff  has  a  single  right 
of  recovery,  that  may  rest  upon  one  ground  or  upon  another, 
according  to  the  facts  to  be  shown  by  the  evidence,  and 
he  can  not  safely  foretell  the  precise  nature  and  limits 
of  the  defendant's  liability,  to  be  developed  upon  the 
trial,  he  may  state  his  right  of  action  variously,  in  separate 
causes  of  action.^  This  privilege  is  an  exception  to  the 
general  rule  that  each  separate  statement  should  set  out  a 
distinct  and  independent  right  of  action,  and  inasmuch  as  a 
plurality  of  statements  multiplies  the  issues,  and  tends  to 
obscure  the  real  claim  which  the  defendant  will  have  to  meet, 
it  is  to  be  indulged  only  where  it  is  fairly  necessary  for  the 
protection  of  the  plaintiff,  and  where  it  will  not  mislead  or 
embarrass  the  defendant  in  his  defense.  Courts  should  not, 
on  the  one  hand,  by  an  unyielding  adherence  to  the  general 
principle,  endanger  the  plaintiff's  right ;  nor  should  they,  on 
the  other  hand,  encumber  the  record,  or  embarrass  the  de- 
fense, by  allowing  needless  latitude  in  the  statement  of  a 
single  right  of  recovery.     And  where,  under  favor  of  this 

iBirdseye  V.Smith,  32  Barb.  217;  Minn.   127;  Bank  v.  Webb,  39  N. 

Velie  V.  Ins.  Co.,  65  How.  Pr.  1 ;  Y.  325 ;  Bank  v.  Gaines,  10  Ky.  L. 

Smith  V.  Douglas,  15  Abb.  Pr.  266  ;  Rep.  451  ;  Matthews  v.  Copeland, 

Van  Brunt  v.  Mather,  48  Iowa,  503  ;  79  N.  C.  493  ;  Jones  v.  Palmer,  1 

Pierson  v.  Ry.  Co.,  45  Iowa,  239;  Abb.  Pr.  442;    Cramer  v.  Oppen- 

Supervisors  v.    O'Malley,   46  Wis.  stein,   16  Colo.    504 ;    Whitney  v. 

35;  Brinkman  v.  Hunter,  73  Mo.  Ry.  Co.,  27  Wis.  327;  Lancaster  v. 

172  ;    Snyder  v.    Snyder,   25  Ind.  Ins.  Co.,  1  Am.  St.  Rep.  739.     Cf. 

309;    Steams  v.    Dubois,   55  Ind.  Greenfield  v.  Ins.  Co. ,  47  N.  Y.  430  ; 

257 ;  Cramer  v.  Lovejoy,   41  Hun,  Dunning  v.  Thomas,  11  How.  Pr. 

281  ;  Walsh    v.     Kattenburgh,    8  281. 


187  THE  COMPLAINT.  §  208 

rule,  the  complaint  contains  a  duplicate  or  alternative  state- 
ment of  one  liglit  of  action,  it  should  state  also  the  reasons 
therefor ;  and  in  such  case  the  verification  of  the  complaint 
need  not  be  more  specific  than  the  statements  of  facts  are. 

208.  Duplicate  Statement — Illustrative  Cases. — 
Where  the  facts  vrhich  determine  the  legal  nature  of  the 
plaintiff's  right  and  the  defendant's  delict  are  within  the 
exclusive  knowledge  of  the  defendant,  and  can  be  developed 
only  upon  the  trial,  the  plaintiff  may,  under  favor  of  the 
foregoing  rule,  state  his  claim  in  different  forms  in  several 
causes  of  action,  stating  also  his  reasons  for  so  doing.  For 
example,  the  plaintiff,  not  knowing  whether  goods  shipped 
on  defendant's  road  and  not  delivered,  were  lost  in  transit, 
or  burned  at  defendant's  warehouse,  joined  two  causes  of 
action,  one  against  the  defendant  as  common  carrier,  and  the 
other  against  it  as  a  warehouseman,  and  the  court  sustained 
the  pleading,  and  refused  to  require  the  plaintiff  to  elect  on 
which  cause  he  would  proceed.^ 

In  an  action  for  work  and  labor,  the  complaint  contained  a 
cause  of  action  alleging  an  agreement  to  pay  a  stipulated 
price,  and  another  cause  upon  the  quantum  meruit.  It  ap- 
pearing that  the  work  mentioned  in  both  causes  was  the  same, 
the  defendant  moved  the  court  to  require  the  plaintiff  to 
elect  on  which  count  he  would  proceed  to  trial.  This 
motion  was  overruled,  and  the  pleading  sustained  on  the 
ground  of  inability  to  rely  safely  upon  only  one  ground  of 
liability  .2 

Where  a  plaintiff  claims  to  recover  upon  either  of  two 
causes  of  action,  both  of  which  can  not  be  true,  and  he  does 
not  know  which  one  is  true,  he  may  state  them  in  the  alter- 
native, in  one  complaint.  Thus,  in  an  action  against  a  cor- 
poration, the  plaintiff  complained  that  he  was  induced  to 
purchase  shares  of  stock  in  the  defendant  corporation,  upon 
its  representation  that  they  were  valid,  and  that  after  his 

'Whitney  v.   Ry.    Co.,   27  Wis.  ner  v.  Nagel,  33  Minn.  348;  23  N. 

327  ;  Stearns  v.  Dubois,  55  Ind.  257.  W.  Rep.  808.     Cf.  Erabry  v.  Palm- 

« Wilson  V.  Smith,  61  Cal.  209;  er,  107  U.  S.  3 ;  Beers  v.  Kuehn, 

Langprey  v.  Yates,  31  Hun,  432  ;  84  Wis.  33. 
Ware  v.  Reese,  59  Ga.  588  ;  Wag- 


^  209        ORDERLY  PARTS  OF  PLEADING.  igg 

purchase  the  corporation  denied  the  validity  of  the  shares  of 
stock,  and  refused  to  issue  a  certificate  to  the  plaintiff.  In 
one  cause  of  action,  he  treated  the  stock  as  valid,  and  asked 
judgment  for  its  value,  on  the  ground  that  the  defendant 
had  converted  it ;  and  in  another  cause  he  asked  that  if  the 
stock  was  void,  being  non-issue  or  over-issue,  he  be  awarded 
judgment  for  the  money  he  had  been  induced,  by  defendant's 
false  statement,  to  pay  for  it.  It  was  held  that  the  facts 
warranted  such  alternative  statement.^  The  statement  of 
alternative  grounds  for  one  relief  is  sanctioned  by  numerous 
cases,  in  some  of  which  their  combination  in  a  single  cause 
of  action  is  approved.^ 

209.  Duplicate  Statement — Illustrative  Cases,  Con- 
tinued.— In  an  action  to  recover  insurance  money,  the  com- 
plaint stated  two  grounds  ;  one  that  the  defendant  issued  its 
policy  insuring  plaintiff's  property,  the  other  that,  by  its 
agent,  it  promised  and  contracted  to  insure  the  property,  and 
to  issue  its  policy  to  plaintiff.  A  motion  to  require  plaint- 
iff to  elect  on  which  ground  he  would  rely  was  refused, 
for  the  reason  that  where  there  are  distinct  lines  of 
fact,  each  of  which  would  give  the  plaintiff  a  right  to  re- 
cover, and  when  it  is  apparent  that  different  averments  are 
proper  to  meet  an  emergency  of  the  trial,  it  is  unjust  to 
limit  the  pleader  to  any  one  of  them.^  A  further  reason, 
and  one  applicable  in  all  such  cases,  may  be  suggested  : 
If  the  plaintiff  should  be  limited  to  the  statement  of  only 
one  ground,  and  should  fail  to  establish  that,  it  is  more  than 
doubtful  whether  he  could  thereafter  avail  himself  of  the 
other  ground,  in  a  second  action  for  the  same  recovery. 

1  Bank  v.  Ry.  Co.  (Gin.  Sup.  Ct.),  24  Abb.  N.  C.  326,  in  nota.     Con- 

9  O.  L.  Bull.  355.  tra,  Kewavinee  Co.  v.  Decker,  30 

*  Everitt  v.   Conklin,  90  N.   Y.  Wis.  624 ;   Durant  v.  Gardner,  19 

645  ;  Milliken  v.  Tel.  Co.,  110  N.  Y.  How.  Pr.  94.     The  English  Plead- 

403 ;   Floyd  v.   Patterson,  72  Tex.  ing  Rules,  and  the  Mass.  Practice 

202  ;   The  Emily,   9  Wheat.   381  ;  Act,   have  each,   to  some  extent, 

Williams  v.   Lowe,   4    Neb.   382  ;  sanctioned  the  use  of  alternative 

Thompson  V.  Minford,  11  How.  Pr.  statements.     1  Chit.  PL,  16th  Am. 

273;  Walters  v.    Ins.   Co.,  5  Hun,  Ed.,  260. 

343;  Paving  Co.  v.  Gogreve,  41  ^  VeUe  v.  Ins.  Co. ,  65  How.  Pr.  1. 
La.  An.  Rep.  251  ;  5  So.  Rep.  848  ; 


189  THE  COMPLAINT.  §210 

In  an  action  for  the  price  of  land,  the  plaintiff  was  allowed 
to  claim,  in  one  cause  of  action,  on  a  special  contract,  and  in 
another  to  claim  on  the  quantum  valebant;  and  under  the 
latter,  he  was  allowed  to  introduce  evidence  as  to  the  value 
of  the  land.^ 

A  cause  of  action  on  a  renewal  note,  and  one  on  the 
original  note,  may  be  joined,  where  the  renewal  note  is 
usurious.^  And  in  some  cases,  the  courts  have  sanctioned 
the  joining  of  a  cause  on  a  promissory  note  with  another 
stating  the  transaction  that  furnished  the  consideration  for 
the  note.^ 

This  relaxation  of  the  general  rule,  allowing  duplicate  and 
alternative  statements  of  a  single  right  of  recovery,  carries 
with  it,  of  course,  the  right  to  introduce  evidence  to  sustain 
such  of  them  as  the  defendant  may  put  in  issue. 

210.  Several  Kinds  of  Relief  on  One  Cause  of  Action. 
— From  one  right  of  action, — that  is,  from  one  primary  right 
and  one  breach  thereof, — may  arise  a  right  to  two  or  more 
different  kinds  of  relief,  obtainable  in  one  action.  In  such 
case,  there  being  but  one  right  of  action,  there  should  be  but 
one  cause  of  action  stated  in  a  complaint  asking  for  the 
several  kinds  of  relief.  Where  one  is  the  owner  of  land,  and 
entitled  to  the  possession  thereof,  and  another  wrongfully 
takes  possession  of  the  land  and  uses  it,  there  is  but  a  single 
right  of  action,  to  wit,  the  one  primary  right  of  possession, 
and  the  invasion  thereof  by  one  continuous  wrongful  act ; 
but  the  reliefs  to  which  the  land-owner  is  entitled  are,  (1). 
restoration  of  possession,  (2)  damages  for  the  detention,  and 
(3)  the  rents  and  profits  received  by  the  wrong-doer.  A 
complaint  in  such  case  should  contain  but  one  cause  of  action,, 
and  a  prayer  for  full  relief.  In  like  manner,  upon  a  single 
set  of  facts,  stated  in  one  cause  of  action,  a  plaintiff  may  have 
the  threefold  relief  of  (1)  abatement  of  a  nuisance,  (2)  dam- 

'  Stearns  v.  Dubois,  55  Ind.  257  ;  225  ;    Kimball  v.  Bryan.  56  Iowa, 

Rhodes  v.  Pray,  36  Minn.  392.  632 ;  10  N.  W.  Rep.  218  ;  Devens, 

^  Bank  V.  Webb,  39  N.  Y.  325.  J.,   in    O'Conner    v.    Hurley,    147 

•  Van  Brunt  v.  Mather,  48  Iowa,  Mass.  145  ;  16  N.  E.  Rep.  767.     Con- 

503  ;  Vibbard  v.  Roderick,  51  Barb,  tra,  Ferguson  v.  Gilbert,  16  O.  8. 

616,  628  ;  Camp  v.  Wilson,  16  Iowa,  88. 


§211  ORDERLY  PARTS  OF  PLEADING.  190 

ages  tlierefor,  and  (3)  its  further  commission  enjoined.^  In 
such  cases,  the  different  kinds  of  relief  do  not  constitute  sep- 
arate rii^hts  of  action  ;  there  is  but  one  primary  right,  and 
one  delict,  and  these  afford  but  one  right  of  action,  requiring 
but  one  cause  of  action  for  its  statement,  however  many  kinds 
of  relief  may  be  had.  Where  each  kind  of  relief  is  asked 
upon  precisely  the  same  operative  facts,  but  one  statement  of 
the  facts  is  required. 

211.  Several  Reliefs  on  One  Cause,  Continued. — In 
suits  in  equity,  where  the  bill  is  for  relief,  as  distinguished 
from  bills  not  for  relief,^  so  that  the  general  jurisdiction  of 
the  court  attaches  for  the  purpose  of  affording  relief,  it  is  a 
general  rule  that  if  the  chancellor  gives  equitable  relief,  he 
will  retain  the  cause  and  give  the  plaintiff  such  further  legal 
relief,  connected  with,  or  growing  out  of,  the  equity,  as  he 
may  be  entitled  to ;  in  other  words,  the  chancellor,  having 
acquired  jurisdiction  for  the  purposes  of  relief,  will  try  the 
whole  cause,  and  not  drive  the  plaintiff  to  another  action  at 
law  to  obtain  full  relief.^  This  rule  of  procedure  in  equity, 
adopted  to  prevent  multiplicity  of  suits,  obtains  under  the 
new  procedure.  But  while  this  is  a  rule  of  procedure,  it  is 
not,  and  never  was,  a  rule  of  pleading ;  and  it  does  not 
authorize  the  joining  of  separate  causes  not  otherwise  join- 
able,  much  less  the  commingling  of  several  causes  in  one 
statement,  though  the  prevailing  practice  is,  to  employ  but  a 
single  statement  in  cases  falling  within  this  rule. 

In  an  action  to  enjoin  the  maintenance  of  an  elevated  rail- 
road in  front  of  plaintiff's  property,  and  for  damages  thereto- 
fore caused  by  its  maintenance,  there  is  but  one  right  of 
action.  But  one  right  is  asserted,  and  but  one  wrongful  act 
complained  of  ;  and  but  one  cause  of  action  should  be  stated, 
though  two  kinds  of  relief,  one  equitable  and  the  other  legal, 
are  asked.*     The  damages  are  but  an  incident  to  the  main 

'  Hudson  V.  Caryl,  44  N.  Y.  553.  ^  Ante,  152. 

See  also,   Hammond  v.    Cockle,  2  ^  Sto.  Eq.    Jur.  64k-74c ;   BL-ph. 

Hun,  495;  Henry  v.  McKittrick,  42  Eq.  Jur.  565. 

Kan.    485.       Contra,    Dictum     of  *  Shepard  v.  Ry .  Co. ,  5  N.  Y.  Supp. 

Swan,  C.  J.,  in  McKinney  v.  Mc-  189.      In  Akin  v.  Davis,    11   Kan. 

Kinney,  8  O.  S.  423.  580,  it  was   held  that   where  one 


^91  THE  COMPLAINT.  §212 

object  of  the  action,  and  the  right  to  both  kinds  of  relief 
arises  from  the  same  facts. 

A  plaintiff  may,  on  a  single  cause  of  action,  ask  for  different 
kinds  of  relief,  in  the  alternative.^ 

212.  Action  to  Reform  and  to  Enforce  an  Instru- 
ment.— It  has  generally  been  held  that  in  actions  to  reform 
written  instruments,  and  to  enforce  them  as  reformed,  only 
one  cause  of  action  is  required.  It  is  so  held  in  actions  to 
reform  a  promissory  note,  and  for  judgment  thereon  as  le- 
formed ; '^  to  reform  a  written  contract,  and  for  judgment 
thereon  as  corrected  ;  ^  to  reform  a  policy  of  insurance,  and 
for  judgment  thereon  as  reformed ;  *  to  reform  a  mortgage, 
and  to  foreclose  it  as  reformed,^  or  to  reform  a  deed,  and  to 
quiet  the  title  thereunder.^ 

So,  also,  in  actions  to  cancel  an  instrument  and  to  recover 
damages,  or  to  set  aside  a  conveyance  and  to  recover  or 
appropriate  the  land,  it  has  generally  been  held  that  but  one 
cause  of  action  is  necessary.  It  has  been  so  held  in  an 
action  to  recover  for  personal  injuries  and  to  cancel  a  release 
from  liability  therefor  ; '^  and  in  an  action  for  divorce  and 
alimony,  and  to  set  aside  a  fraudulent  conveyance  from 
defendant.^ 

These  holdings,  which  are  supported  by  abundant  author- 
builds  a  dam,  and  thereby  causes        '  Hardin  v.  Boyd,  113  U.  S.  756 
a  stream  of  water  to  overflow  an-    Ins.  Co.  v.  Ins.  Co.,  1  Paige,  284 
other's  land   to  his  damage,  the  in-    Korne  v.    Korne,   30  W.    Va.    1 
jured  person    has   two    rights    of    Wood  v.  Seely,  32  N.  Y.  105. 
action  ;  one  for  damages,  which  is        '  Pom.  Rem.  459. 
a  legal  right,  and  one  to  restrain        ^  Gooding  v.  McAllister,  9  How. 
the  continuance  of  the  dam,  which    Pr.  123. 

is  an  equitable  right.  The  error  of  ■*  Bidwell  v.  Ins.  Co.,  16  N.  Y. 
this  view  is,  that  it  has  regard  to  263:  N.  Y.  Ice  Co.  v.  Ins.  Co.,  2S 
the  kinds  of  relief  to  which  the  N.  Y.  357  ;  Ins.  Co.  v.  Boyle,  21 
plaintiff  is  entitled  ;  a  matter  that    O.  S.  119. 

should  not  be  considered  in  deter-  '  Hutchinson  v.  Ainsworth,  73 
mining  whether  the  facts  consti-  Cal.  452  ;  McClurg  v.  Phillips,  49 
tute  more  than  one  right  of  action.     Mo.  315. 

There  was  clearly  only  one  primary        *  Hunter  v.  McCoy,  14  Ind.  528. 
right  invaded,  by  only  one  culpa-        '  \\Tietstone  v.  Beloit,  etc.,  Co., 
tory  act.     The  right  to  two  reliefs    76  Wis.  613. 
grew  out  of  the  same  facts.  »  Damon  v.  Damon,  28  Wis.  510. 


§  213  ORDERLY  PARTS  OF  PLEADING.  192 

ity,  rest  upon  the  theory  that  the  reformation  or  cancellation 
is  but  ancillary  to  the  main  relief  sought,  and  that  because 
the  right  to  a  judgment  depends  upon  the  reformation  or 
cancellaiion,  the  allegations  for  that  purpose  become  part  of 
the  ground  for  judgment.  It  is  true  that  if  we  look  only  to 
the  purpose  of  the  reliefs  sought,  the  one  is  subsidiary  to  the 
other ;  but  it  by  no  means  follows  that  only  one  cause  of 
action  is  stated.^  In  an  action  to  reform  and  to  enforce  a 
contract,  there  are,  generally,  two  causes  of  action — one  on 
equitable  ground,  the  other  on  legal  ground.  Some  aver- 
ments that  are  necessary  in  one  would  be  surplusage  in  the 
other.  In  the  legal  cause,  the  contract  should  be  pleaded  as 
it  was  actually  made,  and  the  breach  should  be  alleged ;  but, 
generally,  no  mention  of  the  fraud  or  mistake — the  ground 
for  reformation — is  either  necessary  or  proper.  In  the  equi- 
table cause,  the  contract  as  actually  made,  and  also  the  fraud 
or  mistake,  should  be  averred ;  but  an  allegation  of  the 
breach  is  neither  necessary  nor  proper.  It  is  clear  that  a 
statement  of  facts  sufficient  for  the  one  relief  may  not  show 
a  right  to  the  other. 

213.  Action  to  Reform  and  to  Enforce  an  Instru- 
ment, Continued. — Another  ground  upon  which  the  suf- 
ficiency of  a  single  cause  of  action  in  such  cases  is  main- 
tained is,  that  the  legal  demand  does  not  arise  until  after 
the  decree  of  the  chancellor  on  the  equitable  demand  ;  that 
the  plaintiff's  power  to  enforce  his  legal  demand  begins  only 
when  the  instrument  has  been  corrected ;  and  that  before 
the  reformation  of  the  instrument,  no  legal  ground  for  relief 
can  be  stated.^ 

This  view  regards  the  equitable  relief  sought  as  giving 
character  to  the  action,  and  regards  the  legal  relief  as  a  mere 
incident.  It  arises  from  a  misinterpretation  of  the  rule  in 
equity  procedure,  that  when  the  chancellor  has  acquired 
jurisdiction  for  the  purpose  of  relief,  he  will  give  full  relief. 

1  Faesi  v.    Goetz,   15  Wis.   231  ;  Henderson  v.  Dickey,  50  Mo.  161  ; 

Stephens  v.  Magor,  25  Wis.    533  ;  Stewart  v.  Carter,  4  Neb.  564  ;  Bank 

Harrison  v.    Bank,   17  Wis.    340  ;  v.  Newton,  13  Colo.  245. 
Guernsey  v.  Ins.  Co.,  17  Minn.  104,        ^  Bliss  PL  166-171. 
108 ;  Peyton  v.  Rose,  41  Mo.  257 ; 


i93  THE  COMPLAINT.  §214 

This  power  of  the  chancellor,  never  very  clearly  defined, 
arose  for  the  prevention  of  a  multiplicity  of  actions,  and  has 
no  reference  to  the  rule  of  pleading  under  consideration. 
The  new  procedure,  with  the  same  end  in  view,  has  gone  a 
step  further,  and  authorized  the  joinder  of  legal  and  equi- 
table causes  in  one  action.  But  this  rule  of  procedure  has 
not  affected  the  inherent  distinctions  betweeen  legal  and 
equitable  rights  ;  on  the  contrary,  it  has  intensified  the  neces- 
sity for  separate  statements  thereof,  to  the  end  that  issues 
thereon  may  be  separate  and  distinct,  and,  when  necessary, 
that  they  may  be  separately  tried — legal  issues  being  of  right 
triable  to  a  jury,  and  equitable  issues  to  the  chancellor.  In 
an  action  for  specific  performance  of  a  contract  to  convey 
land,  the  action  is  primarily  for  equitable  relief,  and  dam- 
ages for  the  detention  of  possession,  being  an  incident  only, 
may  properly  be  awarded  by  the  chancellor,^  and,  looking  to 
the  prevailing  practice,  need  not  be  demanded  by  a  separate 
statement  of  operative  facts ;  but  in  an  action  to  correct  an 
■error  in  such  contract,  and  for  damages  for  breach  thereof, 
the  equitable  relief  is  ancillary  to  the  legal  relief  sought, 
and  each  of  the  two  branches  of  the  action  should  be  dis- 
tinguished, both  in  the  pleadings  and  in  the  trial. 

214.  Action  to  Reform  and  to  Enforce  an  Instrument, 
Continued. — In  such  action  there  are  two  distinct  primary 
rights  of  the  plaintiff,  each  invaded  by  a  distinct  and  separate 
wrong  of  the  defendant,  giving  rise  to  separate  remedial 
rights,  or  causes  of  action.  The  right  to  reformation  arises 
before  there  has  been  a  breach  of  contract.  The  earlier 
right,  founded  on  mistake  or  fraud,  is  in  no  way  affected  by 
the  accruing  of  the  later  right,  arising  from  a  breach  of  the 
contract.  These  two  rights,  resting  partly  upon  the  same 
facts  and  partly  upon  different  facts,  differ  in  their  nature 
and  in  their  origin.  They  arise  at  different  times,  and  may 
each  be  tlie  subject  of  a  separate  action.  It  is  axiomatic  in 
pleading,  that  where    the  operative  facts  will  sustain   two 

'  Worrall  v.  Munn,  38  N.  Y.  137 ;  a  master,  or  may  order  an  issue 

Sto.   Eq.  Jur.  796.     In  such  case,  quantum  damnificatus,  to  be  tried 

the  chancellor  may  proceed  directly  by  a  jury, 
with  tlir>  inquiry,  or  may  refer  it  to 

13 


§214  ORDERLY  PARTS  OF  PLEADING.  I94 

separate  actions,  there  are  two  rights  of  action.^  Then  if 
the  facts  necessary  to  be  stated  to  obtain  full  legal  and 
equitable  relief  in  one  action  will  sustain  two  separate 
actions,  there  should  be  two  causes  of  action  in  a  complaint 
for  full  relief. 

It  is  not  correct  to  say  that  the  legal  demand  does  not 
arise  until  after  the  decree  correcting  the  error  in  the  instru- 
ment. The  remedial  right — the  real  contract  and  the  breach 
thereof — exists  without  the  reformation.  The  decree  of  the 
chancellor  correcting  the  mistake  creates  no  right ;  it  simply 
removes  an  obstruction  to  the  enforcement  of  a  pre-existing 
right,  and  furnishes  the  means  for  proving  it.  In  cases 
where  the  statement  of  facts  for  legal  relief  will  necessarily 
disclose  such  defect  in  the  written  instrument  that  no  re- 
medial right  will  appear,  it  may  be  necessary  to  add,  either 
by  allegation  or  by  reference  to  the  other  cause  of  action,  a 
statement  of  the  fraud  or  mistake. 

The  complaint  has  been  held  to  embody  more  than  one 
cause  of  action,  in  a  suit  to  correct  an  official  bond,  and  for 
judgment  for  a  breach  thereof ;  ^  to  reform  an  insurance 
policy,  and  to  recover  thereon  for  loss ;  ^  to  reform  a  written 
contract,  and  for  a  money  judgment  thereon  ;  *  to  cancel  a 
fraudulent  conveyance,  and  to  recover  possession  of  the  land  ;  ^ 
to  have  a  deed  to  plaintiff  declared  a  mortgage,  a  forged 
deed  from  the  mortgagor  set  aside,  and  to  have  plaintiff's 
mortgage  foreclosed.^ 

In  actions  to  reform  an  instrument,  and  to  enforce  it  as 
reformed,  the  causes  should  be  separately  tried ;  and  the  one 
asking  equitable  relief  should  be  first  tried.'      This  is  the 

■  Swan,  J.,  in  Sturges  v.  Burton,  three  actions  :  (1)  to  have  the  first 

8  O.  S.  215.  deed  declared  a  mortgage  ;  (2)  to 

'  Stewart  v.  Carter,  4  Neb.  564.  have  the  second  declared  void  be- 

^  Guernsey  v.  Ins.  Co.,  17  Minn,  cause  a  forgery,  and  to  have  it  can- 

104,  108.  celed ;    (3)  to  foreclose  the  mort- 

*  Harrison  v.  Bank,  17  Wis.  340.  gage." 

5  Peyton  v.   Rose,   41   Mo.   257;  ■"  Boeckler    v.    Ry.    Co.,    10    Mo. 

Bank  v.  Newton,  13  Colo.  245.  App.  448;  Guernsey  v.  Ins.  Co.,  17 

'  Moon  V.     McKnight,   54    "Wis.  Minn.    104 ;  Harrison  v.  Bank,  17 

551.     In  this  case,  the  court  say  :  Wis.  340. 
"  The  plaintiff  might  have  brought 


195  THE  COMPLAINT.  §215 

proper  practice,  for  two  reasons  :  (1)  a  trial  of  the  equity 
cause  may  terminate  the  case  ;  for  if  tlie  plaintiff  sliould  fail 
therein,  he  may  then  have  no  right,  or  only  a  modified  right, 
under  the  legal  cause ;  (2)  the  instrument,  as  modified,  may 
be  necessary  evidence  in  the  trial  of  the  cause  for  legal 
relief. 

215.  Action  for  Debt,  and  to  Enforce  Lien. — It  has 
been  held  that  an  action  on  a  note  and  mortgage,  for  a  per- 
sonal judgment  and  a  foreclosure,^  and  an  action  to  recover 
unpaid  purchase-money  and  to  enforce  a  vendor's  lien  there- 
for, should  each  contain  but  one  cause  of  action,  for  the 
leason  that  the  legal  and  equitable  relief  arise  in  each  case 
from  a  single  state  of  facts. 

But  there  are  contrary  holdings,  and  they  rest  upon 
sounder  principle.^  To  blend  in  one  cause  of  action  a  demand 
for  a  personal  judgment  and  for  the  enforcement  of  a  lien, 
whether  the  lien  be  legal  or  equitable,  is  to  disregard  the 
rule  requiring  causes  of  action  to  be  separately  stated,  and  to 
lose  sight  of  all  distinctions  between  rights  of  action.  In  an 
action  for  judgment  on  a  note,  and  foreclosure  of  a  mort- 
gage, there  are  clearly  two  rights  asserted ;  the  one  legal, 
the  other  equitable.  These  separate  rights  could  be  made 
the  subject  of  two  independent  actions ;  therefore,  they 
require,  when  joined  in  one  action,  two  separate  statements 
or  causes  of  action. 

Prior  to  the  union  of  legal  and  equitable  actions,  under 
the  Reformed  Procedure,  such  mortgagee  had  three  separate 
remedies,  two  legal,  and  one  equitable.  He  could  maintain 
(1)  an  action  at  law  on  the  note,  with  judgment  and  execu- 
tion, as  though  no  mortgage  existed ;  (2)  an  action  of  eject- 
ment to  recover  possession  of  the  mortgaged  premises,  the 
legal  title  being  in  the  mortgagee;  and  (3)  a  suit  in  equity 
to  foreclose  the  equity  of  redemption.     The  full  relief,   of 

»Pom.     Rem.    459;    Rollins    v.  Carthy  v.  Garraghty,  10  O.  S.  438; 

Forbes,    10  Cal.   299;  Andrews  v.  Giddings  v.  Barney,  31  O.  S.  80; 

Alcorn,  13  Kan.  351.  Spence  v.  Ins.   Co.,  40  O.  S.  517; 

■■^  Harrison  V.  Bank,  17  Wis.  340 ;  Sauer  v.    Steinbauer,   14  Wis.  70; 

Ladd  V.  James,  10  O.  S.  437 ;  Me-  Stephens  v.  Magor,  25  Wis.  533. 


p 


§216        ORDERLY  PARTS  OF  PLEADING.  igg; 

judgment  and  foreclosure,  could  not  be  obtained  without 
two  actions,  in  separate  and  distinct  tribunals  ;  the  one  to 
enforce  a  right  purely  legal,  the  other  to  enforce  a  right 
purely  equitable.  ^  These  separate  rights  lose  none  of  their 
distinct  and  independent  characteristics  by  being  brought 
into  one  action  for  their  enforcement.  The  cause  of  action 
on  the  note  is  legal,  that  on  the  mortgage  is  equitable  ;  an 
issue  upon  the  one  is  triable  by  a  jury,  an  issue  upon  the 
other  is  triable  by  the  court ;  as  to  one,  constructive  service 
will  give  jurisdiction,  as  to  the  other,  actual  service  is 
requisite  ;  the  remedy  upon  one  is  by  judgment  and  execution, 
upon  the  other  by  decree  and  order;  the  action  may  be 
barred  as  to  one  by  the  statute  of  limitations,  when  it  is  not 
as  to  the  other ;  and  one  may  be  answered  by  a  defense  not 
available  as  to  the  other. 

216.  Action  for  Debt,  and  to  Enforce  Lien,  Con- 
tinued.— The  discrepancy  in  the  decisions  as  to  whether  a 
complaint  asking  personal  judgment  on  a  note,  and  fore- 
closure of  a  mortgage  securing  the  note,  should  contain  one 
cause  of  action  or  two,  is  due  to  a  failure  to  discriminate 
between  the  right  of  action  and  the  cause  of  action.  A  dis- 
tinguished writer  says  :  "  There  is  but  one  cause  of  action," 
[right  of  action]  although  two  actions  may  be  based  upon  it.- 
The  cause  of  action  is  the  refusal  to  pay ;  if  he  seeks  to  en- 
force the  lien,  the  plaintiff  has  the  same  cause  of  action,  only 
another  remedy."  ^  But  "the  refusal  to  pay  "is  only  one 
element  of  a  right  of  action — the  delictum.  The  promise  in 
the  note,  and  the  breach  thereof,  constitute  the  legal  right  of 
action,  for  a  money  judgment;  the  conveyance  to  secure 
payment,  and  breach  of  its  condition,  constitute  the  equitable 
right  of  action,  to  foreclose  the  defendant's  equity  of  redemp- 
tion. It  is  true  that  the  same  culpatory  fact,  "  refusal  to  pay,'' 
constitutes  the  delict  in  each  right  of  action,  but  the  investi- 
tive facts  are  not  the  same. 

If  the  complaint  in  such  action  should  contain  but  a  single 

^  The  practice  in  equity  of  award-    close,  was  not  the  equivalent  of  a 
ing  execution  for  the  unpaid  bal-    judgment  at  law. 
ance  of  the  debt,  in  a  suit  to  fore-        *  Bliss  PI.  171. 


197  THE  COMPLAINT.  §  217 

cause  of  action,  it  is  because  there  is  in  such  case  but  one 
right  of  action.  If  the  right  to  judgment  on  the  note,  and  to 
foreclosure  of  the  mortgage,  constitute  but  one  right  of 
action,  then  an  action  and  judgment  on  the  note  alone  would 
be  an  adjudication  of  the  whole  right  of  action,  and  would 
bar  a  subsequent  action  to  foreclose  the  mortgage  ;  and,  e 
converso^  the  pendency  of  an  action  to  foreclose  the  mortgage 
would  be  a  good  plea  in  abatement  in  a  subsequent  action  on 
the  note  alone.  But  it  has  been  held  in  such  case  that 
separate  actions  may  be  maintained  at  the  same  time,  and 
that  the  pendency  of  one  is  not  matter  of  defense  in  the 
other.i  Indeed,  since  the  one  action  may  proceed  without 
actual  service  and  the  other  may  not,  the  prosecution  of 
both  actions  at  the  same  time,  and  in  different  jurisdictions, 
may  be  necessary  to  obtain  a  complete  remedy. 

217.  Remedy  for  Duplicity. — Two  or  more  causes  of 
action  may  be  improperly  united  in  a  complaint,  (1)  by 
separate  statements  of  causes  not  joinable,  called  misjoinder, 
or  (2)  by  commingling  two  or  more  causes  in  one  statement, 
which  is  commonly  called  duplicity.  Misjoinder ^  relates  to 
the  fact  of  the  union,  and  is  remediable  by  demurrer ;  ^ 
duplicity  relates  to  the  form  of  the  union,  and  is  remediable 
by  motion  to  require  the  causes  to  be  separately  stated.*  If 
several  causes,  not  joinable,  are  united  in  one  statement,  so 
that,  in  form,  but  one  cause  of  action  is  stated,  wlien  in  fact 
two  or  more  that  can  not  be  joined  in  any  form  are  embraced 
therein,  the  complaint  is  faulty  both  in  the  fact  of  joinder 
and  in  the  form  thereof,  and  is  amenable  to  either  motion  or 
demurrer,  or  both  may  be  addressed  to  it  successively.  It 
seems  the  more  approved  practice  is,  to  demur  for  misjoinder; 
though  if  we  consider  the  consequences  of  a  misjoinder,''  it 
will  be  seen  that  the  more  convenient  course  would  be  to 
have  the  causes  separated  in  the  first  instance,  so  that  the 

•  Spence  v.  Ins.  Co.,  40  O.  S.  517.    used    as    synonymous    with    mis- 

•  Multifariousness,  the  term  used    joinder. 

in  equity  to  signify  the  improper        '  Ante,  201  ;  Post,  299,  300. 
union  of  distinct  and  independent        ■•  Post,  285,  286. 
demands  in  one  bill,  is  sometimes        '  Ante,  201. 


§217  ORDERLY  PARTS  OF  PLEADING.  198 

several  causes  may  distinctly  appear,  if  misjoinder  be  found. 
If  a  single  statement  embrace  two  or  more  causes  in  their 
nature  joinable,  but  all  of  which  are  insufficient  in  substance, 
a  general  demurrer  may  properly  be  addressed  to  the  com- 
plaint. If  only  part  of  the  causes  so  commingled  are  defect- 
ive in  substance,  there  is  authority  for  demurring  to  such 
defective  cause  or  causes,  without  first  separating  them  ;  ^ 
for  the  plaintiff  may  not  urge  the  formal  defect  of  his  plead- 
ing to  defeat  a  demurrer  that  questions  it  in  substance  ;  and 
the  same  rule  of  practice  has  been  applied  to  an  answer  com- 
mingling two  distinct  defenses  in  one  statement.^  But  the 
better  practice  is,  to  have  the  causes  separated,  by  motion, 
and  then  to  demur  to  such  as  are  insufficient. 

If  facts  constituting  a  single  right  of  action  be  improperly 
divided  into  two  or  more  separate  statements,  the  pleading 
will  not  thereby  be  rendered  duplex,  but  each  statement  will, 
of  course,  be  insufficient  in  substance,  and  subject  to  de- 
murrer for  that  cause.3  But  some  courts,  regarding  the 
defect  as  one  of  form  rather  than  of  substance,  have  disre- 
garded the  formal  separation,  and  treated  the  dissevered 
statement  as  an  entirety,  and  therefore  sufficient  as  a  single 
cause  of  action.* 

Neither  a  commingled  statement  of  several  causes,^  nor  a 
dissevered  statement  of  a  single  cause,^  is  ground  for  a 
motion  to  require  the  plaintiff  to  elect.  Nor  is  a  dissevered 
statement  of  a  single  cause  amenable  to  demurrer  for 
misjoinder  of  causes.'^ 

The  commingling  of  several  causes  in  one  statement,  being 
a  defect  of  form  only,  is  waived  if  the  defendant  answer 
without  objecting  to  such  defect.^     And   the   requirement 


'  Burhaus  v.  Sqmres,  75    Iowa,  Rice  v.  Coolidge,   121  Mass.   393 

59.  Brooks    v.    Ancell,    51    Mo.    178 

« Wright    V.    Connor,    34  Iowa,  Welch   v.    Piatt,     32    Hun,     194 

240.  Madge  v.  Puig,  12  Hun,  15. 

»  Catlin  V.  Pedrick,  17  Wis.  88.  ^  Craig  v.  Cook,  28  Minn.  232. 

^  Everett  v.  Wagmire,   30  O.  S.  *  Rinehart  v.  Long,  95   Mo.  396. 

308 ;  Andrews  v.  Alcorn,  13  Kan.  '  Hillman  v.   Hillman,    14  How. 

351  ;  Norman  v.   Rogers,  29   Ark.  Pr.  456. 

365  ;  Shook  v.  Fulton,  4  Cow.  424  ;  ^  Alpin  v.  Morton,  21  O.   S.  536. 


199  THE  COMPLAINT.  §218 

that  different  causes  shall  be  separately  stated  and  numbered 
being  a  matter  of  practice,  the  right  to  enforce  it  is  formal 
rather  than  substantial,  and  is  generally  within  the  control 
of  the  trial  court.  An  order  denying  a  motion  to  require 
commingled  causes  to  be  separated  will  not  be  reversed, 
unless  the  party  complaining  has  thereby  been  deprived  of 
some  legal  right.^ 

III.    OF   THE   PRAYER   FOR    RELIEF. 

218.  Office  of  Prayer  for  Relief.— The  third  requisite  (sl'Js  O^ 
of  the  complaint  is  "  a  demand  for  the  relief  to  which  the 
plaintiff  supposes  himself  entitled."^  Every  action  has  an 
object ;  that  is,  it  is  brought  to  obtain  some  particular  remedy 
or  relief.  This  relief  sought  is  to  be  stated  in  the  prayer  of 
the  complaint,  and,  when  obtained,  is  embodied  in  the  judg- 
ment of  the  court.  The  defendant  is  entitled  to  know  what 
facts  the  plaintiff  relies  upon  and  intends  to  prove,  in  order 
that  he  may  prepare  to  meet  them,  and  for  the  same  reason 
he  is  entitled  to  know  what  use  the  plaintiff  intends  to  make 
of  his  alleged  facts.  To  advise  the  defendant  in  this  regard, 
the  plaintiff  is  required  to  state  what  relief  he  demands. 
The  prayer  should  make  the  complaint  definite  in  this  par- 
ticular ;  and  if  the  legal  grounds  of  the  plaintiff's  claim  do 
not  sufficiently  appear  from  the  facts  stated  and  the  relief 
demanded,  he  should  indicate  such  grounds  by  special  state- 
ment.^ For  example,  if  facts  relied  on  as  constituting  a 
waiver,  or  an  estoppel,  are  stated,  and  such  effect  is  not  ob- 
vious from  the  facts  and  the  prayer  for  relief,  the  pleader 
should  add  the  statement  that  the  right  has  thereby  been 
waived,  or  the  party  thereby  estopped.  While  this  is  assert- 
ing a  mere  inference  of  law,  it  is  allowable  for  the  purpose 
of  showing  the  intended  application  of  the  facts  stated,  when 
that  would  otherwise  be  obscure.* 


'  Goldberg  v.   Utley,   60    N.  Y.    Beaumont,   1     DeG.   &  Sm.   397, 
427.  406  ;  Gaston  v.  Frankum,  2  DeG 

»  Ante,  169.  &  Sm.  561.  569. 

»  Lang.     Eq.    PI.    62  ;  CUve  v.        ♦  Gould  PI.  iii.  15. 


§§219-220  ORDERLY  PARTS  OF  PLEADING.  200 

The  prayer  for  relief  is  a  requisite  of  the  complaint,  but  it 
is  no  part  of  the  cause  of  action.  Hence  a  complaint  con- 
taining several  causes  of  action  ma}-,  and  properly  should, 
contain  but  one  prayer  for  relief.  In  such  case  it  is  re- 
quisite only  that  each  separate  statement  shall  be  complete 
as  a  cause  of  action ;  not  that  it  shall  be,  within  itself,  a 
complete  complaint. 

219.  Prayer  for  Alternative  Relief,  and  for  General 
Relief. — A  plaintiff  may,  whether  his  complaint  contain  one 
cause  of  action  or  several,  demand  several  kinds  of  relief, 
whether  legal  or  equitable,  or  both ;  ^  and  he  may  pray  for 
alternative  relief.^  In  a  complaint  on  a  contract  to  convey, 
the  prayer  may  be  for  specific  performance,  or,  if  this  relief 
can  not  be  had,  then  for  damages  for  breach  of  the  contract.^ 

In  actions  for  equitable  relief,  it  is  usual  to  follow  the 
prayer  for  specific  relief  with  what  is  known  as  a  prayer  for 
general  relief — "  and  plaintiff  prays  for  such  other  and  further 
relief  as  may  be  just  and  equitable."  Under  such  prayer, 
the  court  may  decree  such  relief,  other  than  that  specifically 
prayed  for,  as  the  facts  alleged  in  the  complaint  and  proved 
upon  the  trial  will  justify.* 

220.  Relief  Not  Prayed  for. — Under  the  former  prac- 
tice, if  a  plaintiff  misconceived  the  nature  or  form  of  his 
action, — if  he  brought  an  action  at  law,  and  on  the  trial 
proved  a  case  for  equitable  relief,  or  if  he  sought  equitable 
relief,  and  on  the  hearing  showed  himself  entitled  only  to  a 
judgment  at  law, — he  failed  entirely,  and  was  sent  out  of 
court  without  relief.  But  under  the  new  procedure,  a 
plaintiff  may,  in  such  case,  have  relief  according  to  his  alle- 
gations and  his  proofs.  The  court  will  not  be  controlled 
by  the  prayer  alone,  but  will  look  to  the  facts  alleged  and 
proved,  and  if  they  entitle  the  plaintiff  to  a  remedy,  legal  or 


1  Ante,   210,  211  ;  Richwine    v.  Paige,  284  ;  Kome  v.  Korne,  30  W. 

Presb.  Ch.,  135  Ind.  80.  Va.  1. 

»  Barlow  v.  Scott,  24  N.  Y.  40.  *  Jones  v.    VanDoren,    13    U.  S. 

»  Henry  V.  McKittrick,  42  Kan.  684;  Riddle  v.  Roll,  24  O.    S.  572; 

485.   See,  also,  Hardin  V.  Boyd,  113  English    v.    Foxall,    2    Pet.    595; 

U.S.  756;  Ins.  Co.  v.  Ins.    Co.,  1  Tayloe  v.  Ins.  Co.,  9  How.  390. 


201  THE  COMPLAINT.  §221 

equitable,  it  will  be  awarded,  whether  prayed  for  or  not.^ 
For  example,  where  the  facts  alleged  entitle  the  plaintiff  to 
an  accounting,  but  not  to  a  money  judgment,  the  equitable 
relief  should  be  granted,  if  the  facts  alleged  are  sustained  by 
the  proof.^  But  if  sufficient  facts  are  not  alleged,  or,  being 
alleged,  are  not  proved,  no  relief  can  be  given,  although 
prayed  for  in  the  most  formal  way.^  Recovery  must  be 
secundum  allegata  et probata;  and  allegations  without  proof, 
ar  proof  without  allegations,  will  not  avail.  Thus,  if  the 
facts  alleged  show  9,  right  to  recover  money  laid  out  and 
expended,  but  not  a  right  to  an  accounting,  and  the  prayer 
is  for  a  legal  judgment,  if  the  proof  fails  to  sustain  the  aver- 
ments of  the  complaint,  but  does  show  a  right  to  an  account- 
ing, the  equitable  relief  should  not  be  granted ;  for  while 
the  proof  would  warrant  such  relief,  there  are  no  allegations 
to  which  the  proof  can  be  applied.* 

The  default  of  defendant  for  answer  is  not  an  admission 
of  right  to  the  relief  prayed  for,  but  only  to  such  as  is  both 
prayed  for  and  warranted  by  the  facts  alleged.^  Therefore, 
upon  default  for  answer,  relief  not  prayed  for  can  not  be 
had  ;  nor  can  that  prayed  for,  if  not  warranted  by  the  facts 
alleged.^ 

221.  Prayer  an  Election  between  Remedies. — Where 
the  facts  stated  in  a  complaint  entitle  the  plaintiff  to  either 
of  two  remedies,  he  may  elect  the  one  or  the  other  by  his 
prayer  for  relief,  and  thereby  determine  the  character  of  the 
action.'''  If,  for  example,  the  declaration  state  a  contract  to 
convey,  and  a  breach  thereof,  so  that  plaintiff  may  have 
specific  performance  or  damages,  he  can  not  have  both 
remedies,  and  should,  in  his  prayer  for  relief,  elect  the  one 
or  the  other ;  though  in  such  case  he  may  pray  for  alterna- 
tive relief. 

•  White  V.   Lyons,  43  Cal.  279  ;        *  Drew  v.  Person,  22  Wis.  651. 
Graves  v.    Spier,   58    Barb.    349  ;        »  Argall  v.  Pitts,  78  N.  Y.  239. 
Leonard  v.  Rogan,   20  Wis.   540  ;        «  Bliss  PI.  160. 
Hamil  v.  Thompson,  3  Colo.    518  ;        '  Gillett    v.   Freganza,   13  Wis. 

Williams  v.  Slote,  70  N.  Y.  601.  472  ;  Lowber  v.   Connit,   36  Wis. 

« Emery  v.  Pease,  20  N.  Y.  62,   64.  176  ;  Corry  v.   Gaynor,   21    O.    S. 

»  Bradley    v.   Aldrich,  40    N.   Y.  977.  Per  Welch,  C.  J  ;  O'Brien  v. 

504.  ritz!,'eral>l,  143  N.  Y.  377. 


§§222-223        ORDERLY  PARTS  OF  PLEADING.  202 

222.  Prayer  for  Relief  Not  Demurrable. — A  com- 
plaint is  not  demurrable  because  the  relief  asked  is  not  war- 
ranted by  the  facts  stated,^  or  is  inconsistent,^  or  unneces- 
sary ;  ^  and  it  has  been  held  that  a  motion  to  make  a  com- 
plaint specific  and  definite  can  not  be  applied  to  the  prayer.* 
It  is  a  general  rule  that  the  prayer  may  be  amended  at  any 
stage  of  the  cause,  without  delay,  and  without  terms.^ 

223.  Complaint  to  be  Subscribed. — All  pleadings  must 
be  subscribed  by  the  party  or  by  his  attorne}'-.  This,  like 
the  requirement  that  the  word  "  complaint  "  or  "  petition  " 
shall  follow  the  title  of  the  cause,  is  purely  formal,  and 
objection  to  a  pleading  for  want  of  subscription  is  to  be  taken 

'■J   '  by  motion  to  strike  it  from  the  files  ;  ^  but  so  long  as  such 

.    L  defective  pleading  remains  on  file,  it  furnishes  no  ground  for 

^  dismissing   the   actionJ      The   subscription   may   be   either 

printed  or  written,^  and  in  the  absence  of  a  motion  to  strike 

from  the  files,  the  signature  of  the  party  to  the  verification 

is  a  sufficient  subscription  of  the  pleading.^ 

The  omission  of  the  subscription  to  the  complaint  does  not 
affect  the  jurisdiction  of  the  court,  or  the  validity  of  a  judg- 
ment,^*^cannotbe  made  ground  for  delay,^^  and  may,  on  leave 
obtained,  be  supplied  at  any  time.  One  of  the  essential 
features  of  the  reformed  system  is,  that  matters  merely 
formal  are  not  necessary  to  jurisdiction  or  to  the  validity  of 
procedure,  and  that  mere  informalities  are  not  to  be  regarded, 


'  Orraan  v.  Orman,  26  Iowa,  361  ;        ^  Foote  v.  Sprague,  13  Kan.  155  ; 

Northcraft  v.  Martin,  28  Mo.  469  ;  Cvdver  v.  Rogers,  33  O.  S.  537,   Per 

Tisdale    v.     Moore,   8    Hun,    19 ;  Johnson,  C.  J. 
Mackey  v.  Auer,  8  Hun,  180,   183.        «  Fritz  v.   Barnes,   6  Neb.  435  ; 

Contra,  in  Iowa  and  Connecticut,  Post,  278. 
by  statute.  '  Fritz  v.  Barnes,  6  Neb.  435. 

■^  Metzner  v.   Baldwin,  11  Minn.         ^  Hancock  v.  Bouman,  49  Cal. 

150  ;  Connor  V.  Bd.  of  Ed.,  10  Minn.  413  ;  Ins.  Co.  v.  Ross,  10  Abb.  Pr. 

439.  260,  n. 

^  Saline    Co.   v.   Sappington,   64        ^  Hubbell  v.  Livingston,  1  Code 

Mo.  72.  Rep.    63  ;  Conn    v.   Rhodes,  26  O. 

*  Sieberling  Co.  v.  Dujardin,  38  S.  644. 
Iowa,  403.     Sed  qucere ;  for  in  some        '"  Conn  v.  Rhodes,  26  O.  S.  644. 
cases  it  is  the  office  of  the  prayer        "  Ry.  Co.  v.  Owen,  8  Kan.  409. 
to  make  the  complaint  definite. 


M 


203  THE  COMPLAINT.  §§  224-225 

if  to  disregard  them  will  work  no  prejudice,  and  if  to  regard 
them  will  work  delay. 

IV.    OF   THE   VERIFICATION. 

224.  The  Object  of  the  Verification.— With  the  view 
to  secure  good  faith  and  truthfulness  in  pleading,  to  confine 
litigation  to  matters  really  in  dispute,  and  to  avoid  frivolous 
and  false  issues,  nearly  all  the  codes  require  pleadings  of 
fact  to  be  verified  upon  oath.  By  thus  requiring  parties  to  "^ 
sustain  their  statements  and  denials  by  affidavit  of  their 
truthfulness,  facts  not  believed  to  be  true  will  seldom  be 
alleged  on  the  one  hand,  and  alleged  facts  believed  to  be 
true  will  seldom  be  denied  on  the  other  hand,  and  the 
judicial  controversy  will  thus  be  limited  to  such  statements 
and  denials  as  the  parties  are  willing  to  swear  to. 

In  some  states  no  verification  is  required ;  in  some  it  is 
optional ;  in  some  it  may  be  omitted  in  certain  actions,  or 
under  particular  circumstances ;  and,  when  required,  it  may 
generally  be  made  by  the  party,  by  one  of  several  parties,  or 
by  an  agent  or  attorney  of  the  party. 

225.  Defective  Verification. — The  verification  is  not  re- 
quired to  be  more  specific  than  the  statements  or  denials  sup- 
ported by  it.  If  facts  are  stated  on  information  or  belief,  or 
if  two  causes  of  action  are  stated  in  the  alternative,  only  one 
of  which  can  be  true,  the  verification  may  be  correspondingly 
qualified.! 

The  verification  is  not  strictly  a  part  of  the  pleading,'-^  and 
is  not  necessary  to  vest  jurisdiction.-^  If  omitted,  it  may  be 
supplied,*  and  if  defective,  it  may  be  amended.^ 

'  Boone's  PI.  34  ;  Orvis  v.  Gold-  '  Johnson  v.  Jones,  2  Neb.  126 ; 

Schmidt,  64  How.  Pr.  71  ;   Ladue  Dorrington  v.  Meyer,  8  Neb.   211, 

V,  Andrews,  54  How.  Pr.  160  ;  Trus-  214;  Rush  v.  Rush,  46  Iowa,  648. 

cott  V.  Dole,  7  How.  Pr.   221.  *  Bragg  v.  Bickford,  4  How.  Pr. 

'  George  v.  McAvoy,  6  How.  Pr.  21  ;  Meade  v.  Thorne,  2  W.  L.  JI. 
200 ;  Bank  v.  Shaw,  5  Hun,  114.  312.  Cf.  Boyles  v.  Hoyt,  2  W.  L. 
Complaint  on  note  dated  June  M.  548 ;  V/hite  v.  Freese,  2  C.  S. 
18,  1874,  payable  in  two  months  ;  C.  R.  30,  holding  that  upon  supply- 
jurat  to  verification  dated  June  ing  a  verification,  on  motion  of 
24,  1874.  General  demurrer  over-  plaintiff,  a  new  summons  must 
ruled  on  ground  that  the  jurat  issue, 
was  no  part  of  the  complaint.  *  Johnson  v.  Jones,  2  Neb.  12C  ; 


§  226        ORDERLY  PARTS  OF  PLEADING.         204 

Objection  to  a  pleading,  for  want  of  verification,  or  for  de- 
fective verification,  should  be  made  by  motion  to  strike  from 
the  files. ^  But  such  omission  or  defect  is  waived  by  de- 
murring, or  by  pleading  over,^  or  by  confession  on  a  warrant 
of  attorney  releasing  all  errors.'^ 

226.  Conspectus  of  the  Complaint. — The  complaint 
must  display  a  state  of  facts  that,  under  the  substantive  law, 
entitles  the  plaintiff  to  judicial  action  in  his  favor  and  against 
the  defendant ;  and  it  must  show,  by  allegations,  unless  dis- 
pensed with  by  legal  inference,  that  the  court  has  jurisdic- 
tion, and  that  the  parties  have  legal  capacity  to  sue  and  to 
be  sued.  These  requisites  are  matters  of  substance,  and  can 
not  be  waived  or  dispensed  with.  The  other  parts  of  the  com- 
plaint— title,  name,  prayer,  subscription,  verification — are 
matte i-s  of  form,  and  are,  for  the  most  part,  not  essential  to 
the  jurisdiction  of  the  court  or  the  validity  of  its  procedure. 
The  manner  in  which  the  matter  of  the  complaint  is  to  be 
stated — in  ordinary  and  concise  language,  by  joinder  of 
causes,  and  by  separate  statement  of  causes — is  a  formal  re- 
quirement, designed  to  expedite  procedure,  lessen  its  cost, 
and  enhance  its  certainty  and  safety. 

A  tabular  synopsis  of  the  orderly  parts  of  the  complaint 
will  serve  as  a  retrospect  of  what  has  been  described  in 
detail,  and  will  envisage  and  fix  in  their  order  the  constitu- 
ents of  this  first  pleading. 

Rush  V.  Rush,  46  Iowa,  648  ;  Jones  '  Hughes  v.  Feeter,  18  Iowa,  142  : 
V.  Slate  Co,.  16  How.  Pr.  129.  Butler  v.  Chvirch,  14  Bush,   540  ; 
1  Fritz  V.    Bames,   6    Neb,  435  t  State  v.  Ruth,  21  Kan.  583 ;  Pud- 
Warner  V.   Warner,  11  Kan.  121  ;  ney  v.  Burkhart,  62  Ind.  179. 
Pudney  v.  Burkhart,  62   Ind.  179  ;  »  Bank  v.  Reed,  31  O.  S.  435. 
Post,  278. 


THE  COMPLAINT. 


SYNOPSIS  OF  COMPLAINT. 

I.  The  Title. 

1.  Court  and  County. 

2.  Parties,  Plaintiff  and  Defendant. 
II.  The  Word  "  Complaint,"  or  "  Petition." 

m.  The  Statement. 

(1)  The  Matter  to  be  Stated. 

1.  Capacity  of  Parties. 

2.  Jurisdictional  Facts. 

3.  The  Cause  of  Action. 

(a)  Right  of  Plaintiff. 
(6)  DeUct  of  Defendant, 
(c)  Collateral  Facts. 

(2)  The  Manner  of  Statement. 

1.  Ordinary  and  Concise  Language. 

2.  Joinder  of  Causes. 

3.  Separate  Statement  of  Caus«a. 
rV.  The  Prayer  for  Relief. 

V.  The  Subscription. 
VI.  The  Verification. 


(M 


%A^^ 


CHAPTER  XVIL 

THE  ANSWER. 

227.  Defenses  Defined  and  Classified. — The  answer, 
which  is  the  first  pleading  of  denial  or  of  facts  by  the  de- 
fendant, is  to  set  forth  such  defense  or  defenses  as  he  may- 
have  to  the  demand  of  the  plaintiff.  The  term  "  answer  " 
applies  to  the  entire  pleading,  and  should  not  be  used  to 
designate  any  one  of  several  defenses  embraced  within  such 
pleading.  Any  denial,  or  any  statement  of  operative  facts, 
which  will  show  that  the  plaintiff  is  not  entitled  to  relief,  or 
that  will  wholly  or  partly  defeat  his  claim,  is  a  defense.^ 
For  example,  if  the  plaintiff  sue  to  recover  the  price  of  prop- 
erty sold,  the  defendant  may  answer  (1)  that  payment  is 
not  due,  and  thus  defeat  the  action  while  admitting  the  in- 
debtedness ;  or  (2)  he  may  deny  that  he  bought  the  property, 
and  thus  defeat  recovery,  unless  the  plaintiff  prove  the  sale 
as  alleged ;  or  (3)  he  may  admit  the  purchase,  and  allege 
payment,  which  will  defeat  recovery,  unless  payment  be 
denied,  and  not  proved.  Any  one  of  these  responses  to  the 
plaintiff's  complaint  would  show  that  he  ought  not  to  re- 
cover as  claimed  therein,  and  would  be  a  defense  thereto. 
The  defendant  may  also,  in  such  supposed  case,  allege  a  war- 
ranty of  the  property,  and  a  breach  thereof,  and  make  a 
counter-claim  for  damages. 

228.  Denials  and  New  Matter. — Pursuant  to  the  forego- 
ing definition  and  classification  of  defenses,  the  answer  should 
contain  (1)  a  general  denial  of  all  the  allegations  of  the  com- 
plaint, or  a  specific  denial  of  one  or  more  of  its  material 
allegations  ;  or   it  should  contain  (2)    a  statement  of  new 

1  WoRDEN,  J.,  in  Wilson  v.  Poole,  v.  Crawford,  1  Idaho,  770  ;  Grant, 
33  Ind.  443  ;  Allen,  J.,  in  Bush  v.  J.,  in  Ry.  Co.  v,  Washburn,  5  Neb. 
Prosser,  11  N.  Y.  347,  352  ;  Ry.  Co.     117,  125. 

206 


207  THE  ANSWER.  §  229 

matter  constituting  a  defense,  a  counter-claim,  or  set-off, 
ill  ordinary  and  concise  language.  The  defendant  may 
join  in  his  answer  as  many  grounds  of  defense,  counter- 
claim, and  set-off,  as  he  may  have,  whether  they  are  sucli  as 
have  heretofore  been  denominated  legal  or  equitable,  or  botli ; 
and  he  may  therein  demand  relief  touching  the  matters  in  ques- 
tion in  the  complaint,  against  the  plaintiff,  or  against  other  de- 
fendants ;  but  each  defense,  and  each  affirmative  demand,  must 
be  separately  stated,  and  must  refer  in  an  intelligible  man- 
ner to  the  causes  of  action  which  they  are  intended  to  answer. 
There  is,  generally,  no  statutory  requirement  that  the 
answer  shall  be  entitled.  The  complaint  must  be  entitled 
with  the  names  of  the  court,  county,  and  parties,  followed 
by  the  word  "  complaint "  ;  and  it  is  good  practice,  if  not  an 
express  requisite,  so  to  entitle  all  subsequent  pleadings, 
substituting,  of  course,  "  answer  "  or  "  reply  "  in  the  place 
of  "•  complaint."  In  no  other  way  can  these  pleadings  be  so 
surely  and  so  conveniently  identified  with  the  court  and  the 
action.^ 

I.    OF  DENIALS. 

229.  The  General  Denial. — At  common  law,  the  general 
traverse  is  a  compendious  denial  of  all  that  is  alleged  in  the 
declaration.  It  is  commonly  pleaded  by  a  short  and  simple 
formula,  called  the  general  issue ;  but  it  is  equivalent  to  a 
specific  negation  of  each  material  averment  of  the  declara- 
tion.^  In  like  manner,  the  general  denial  under  the 
Reformed  Procedure  is  a  general  traverse ;  that  is,  it  is  a 
traverse  of  all  the  issuable  facts  alleged  in  the  complaint.  It 
is  the  litis  contestatio  of  the  civilians,  which  put  the  plaintiff 
to  the  proof  of  his  libel.^  But  notwithstanding  this  broad 
and  comprehensive  character  of  the  general  denial,  it  puts  in 
issue  only  the  material  allegations  of  the  complaint.  A 
material  allegation  in  a  pleading  is  one  that  is  essential  to 
the  claim  or  defense;  one  that  could  not  be  stricken  from  the 
pleading  without  leaving  it  insufficient.  An  immaterial 
allegation  in  a  complaint — one  not  essential  to  the  plaintiff's 

'  Boone  PI.  59.  ^  Ante,  43. 

»  Ante,  63. 


§5^230-231         ORDERLY  PARTS  OF  PLEADING.  20S 

demand — need  not  be  proved,^  and  is  not  admitted  by 
failure  to  deny;  a  traverse  thereof  would  present  an  im- 
material issue,  equivalent  to  no  issue. 

230.  Forms  of  General  Denial. — There  are  several  dis- 
tinct forms  of  the  general  issue ;  for  example,  non  est  factum^ 
in  covenant  and  in  debt  on  a  specialty ;  nul  tiel  record^  in 
debt  on  a  record  ;  non  assumsit,  in  assumpsit ;  non  detinet,  in 
detinue  ;  non  culpahilis,  in  trespass,  in  case,  and  in  trover ; 
and  non  cepit,  in  replevin.  But  no  particular  form  of  general 
denial  is  prescribed  or  required ;  it  is  requisite  only  that  each, 
and  every  allegation  of  the  complaint  be  traversed.  A  form 
in  common  use  is,  "  The  defendant,  for  answer  to  the  complaint 
herein,  denies  each  and  every  allegation  thereof."  A  denial 
in  this  form,  "  The  defendant  says  he  denies,"  while  sufficient^ 
is  in  bad  form,  and  has  been  criticised.'^  A  denial  of  "  all 
the  material  allegations  of  the  complaint"  is  good  on  de- 
murrer, but  is  amenable  to  a  motion  to  make  definite. ^  It  is 
faulty  in  that  it  is  uncertain  as  to  what  allegations  are 
denied,  and  what  are  not  denied ;  and  it  allows  the  pleader 
to  determine,  without  stating,  what  allegations  are  by  him 
deemed  material.  An  answer  that  the  defendant  can  not 
admit  the  facts  alleged  in  the  complaint,  and  that  he  calls 
for  proof,  is  not,  in  form  or  in  substance,  a  denial  of  any 
allegation  of  the  complaint.*  Whatever  form  is  employed,  the 
denial  must  be  direct  and  positive.  An  argumentative  denial, 
a  legal  conclusion,  or  a  plea  of  "  not  guilty,"  is  insuf- 
ficient. ^ 

231.  The  Special  Denial. — The  object  of  denials,  whether 
general  or  special,  is  to  put  in  issue  the  allegations  of  the 
complaint.  It  has  been  shown  that  the  general  denial 
traverses  and  puts  in  issue  all  the  material  and  issuable  facts 

•  Gaines  v.  Ins.  Co.,  28  0.  S.  418.  ^  Edmondson  v.  Phillips,  73  Mo. 

'Espinoa    v.    Gregory,   40  Cal.  57;  Pry  v.    Ry.    Co.,  73   Mo.  123; 

58  ;   Chapman    v.     Chapman,     34  Ingle  v.  Jones,  43  Iowa,  28G  ;  Lewis 

How.   Pr.   281  ;  Jones  v.  Ludliim,  v.  Coulter,  10  O.  S.  451. 

74  N.  Y.   61  ;  Moen  v.  Eldred,  22  *  Bently  v.  Dorcas,  11  O.  S.  398  ; 

Minn.  538 ;  Munn  v.   Taulman,   1  Bldg.  Assn.  v.  Clark,  43  O.  S.  427. 

Kan.  254.   Cf.  Smith  v.  Nelson,  62  *  Schenk  v.   Evoy,   24  CaL  104  ; 

N.  Y.  286.  Post,  343,  358. 


209  THE  ANSWER.  §232 

stated  in  the  complaint.     In  most  cases  the  plaintiff's  riglit 
of  action  rests  upon  a  series  or  group  of  facts,  each  one  of 
which  is  an  indispensable  part  of  his  cause  of  action.     It  is 
obvious  that  where  the  right  of  the    plaintiff  is  thus  built 
upon  several  allegations,  each  of    which  is  essential  to  its 
support,  the  right  so  asserted  is  effectually  controverted  by 
the  denial  of  any  one  of  these  essential  parts.      The  com- 
plaint may  sometimes  contain  averments — such  as  those  of 
time,  place,  value — that  must  be  stated,  but  that  need  not  be 
proved  as  stated  ;  and  sometimes  the  complaint  will  contain 
evidential  facts — mere  details  of  evidence,  from  whicli  the 
existence  of  the  operative  facts  is  to  be  inferred ;  and  again       u 
it  may  contain  mere  conclusions  of  law,  resulting  from  facts        i/lJI,iL^^ 
stated,  or  from  facts  not  stated ;  all  such  allegations,  whether         *         , 
of  the  kinds  that  are  necessary  or  of  the  kinds  that  are  not    ^^"wt^,^^ 
necessary  in  the  complaint,  are  not  issuable,  and  a  denial  of      (Jj, 
such  allegations  will  not  present  a  material  issue,  and  is  not  ^ 
defensive.  ^rtKM 

It  follows  from  what  has  been  stated  that  the  denial  of  any  i-t^ 

material  and  issuable  allegation  of  the  complaint  makes    a         .  , 
material  issue,  and  is  a  good  defense.^      Such  traverse  of  a 
particular    averment   of  the  complaint  is   termed  a  special  "^(^tl/d 
denial.     It  is,  substantially,  the   "  common  traverse  "  of  the 
common-law  pleadings,^  and  is  available  where  some  of  the 
issuable  facts  of  the  complaint  are  true,  and  can  not  be  con-    K^      I 
troverted  by  a  general  denial.     Whether  a  specific  denial  in       "  7 ' 
a  given  case,  sufficient  in  form,  constitutes  a  defense,  depends 
upon  whether  the  allegation  traversed  is  in  itself  essential  to 
the  plaintiff's  right  of  action. 

232.  Special  Denial,  Continued. — Some  examples  will 
illustrate  this  form  of  denial.  An  allegation  that  the  defend- 
ant never  gave  to  plaintiff  the  note  sued  on,  is  a  denial  of 
the  plaintiff's  allegation  that  the  defendant  made  and 
delivered  it.^  Iti  replevin,  a  denial  that  the  property  came 
into  defendant's  possession,  or  that  it  was  or  remained  in  his 
possession  at  the  commencement  of  the  action,  is  a  denial  of 

V.    "Warner,   15  Baxb. 


'  Steph.  PI.  295  ;  iPom.  Rem.  615. 

*  Sawyer 

»  Ante.  64. 

282,  285. 

14 

g233 


ORDERLY  PARTS  OF  PLEADING. 


210 


possession.^  An  allegation  that  certain  land  was  dedicated 
as  a  homestead,  by  certain  acts  stated,  is  traversed  by  a  denial 
of  the  ultimate  fact — the  dedication  as  a  homestead  ;  ^  and 
an  allegation  that  a  note  and  mortgage  "were  executed  by 
the  duly  authorized  board  of  trustees  of  the  defendant,"  is 
put  in  issue  by  denial  "that  either  note  or  mortgage  was 
executed  or  made  in  any  way  by  defendant."  ^  Where  a 
complaint  alleges  the  making  and  delivery  of  a  note  to  a 
payee,  and  a  sale  and  delivery  thereof  by  the  payee  to  the 
plaintiff,  an  answer  admitting  the  making  and  delivery, 
alleging  payment,  and  denying  each  and  every  other  allega- 
tion, puts  in  issue  the  sale  and  delivery  to  plaintiff ;  ^  and  an 
answer  to  a  complaint  for  work  performed  and  materials 
A  furnished,  of  a  certain  value,  that  admits  the  doing  of  the 

J(j,A  work  and  the  furnishing  of  the  materials,    but  denies  that 

they  were  of  the  value  specified,  puts  the  value  in  issue.^ 

There  may  be  several  special  denials  in  one  answer,  each 
directed  to  a  separate  and  distinct  averment  of  the  complaint. 

4/M\Aj     In  such  case,  each  denial  should  be  specific  and  direct,  and 
/■  should  point  out  clearly  the  statement  of  the  complaint  in- 

y*^"*"^^     tended  to  be  controverted  by  it.     In  some  states  a  special 

_^  denial  is  required  in  all  cases,  in  some  it  is  required  only  to 

'  ^''  7  /    a  verified  pleading,  while  in  others  it  is  always  pj)tional. 
^^    233.  General   Denial   of  Part    of  Complaint.— It  is 

^  common  practice  to  admit  certain    allegations  of  the  com- 

plaint, and  to  deny  all  allegations  therein  not  expressly 
admitted.  This  general  denial  of  only  a  part  of  the  allega- 
tions of  the  complaint,  combined  with  an  admission  as  to 
others,  has  been  criticised  as  "  a  mongrel  form  of  answer  " 
not  contemplated  by  the  reformed  system,  and  not  in  har- 


U. 


^C^-^^A-. 


1  Roberts  v.  Johannas,  41  Wis. 
616. 

«  Lowell  V.  Lowell,  55  Cal.  316. 
Sed  qurere.  On  principle,  if  the 
allegation  of  dedication  is  merely 
collateral,  or  by  way  of  induce- 
ment, such  allegation  would  be  the 
operative  fact,  and  denial  thereof 
w^ould  be  a  good  traverse  ;  other- 
wise,  the    dedicatory  acts    stated 


would  be  the  operative  facts,  and 
the  allegation  of  dedication  a  legal 
conclusion,  denial  of  which  wovdd 
make  an  immaterial  issue. 

'  Babbage  v.  Church,  54  Iowa, 
172. 

*  AUis  V.  Leonard,  46  N.  Y.  688. 

'  Van  Dyke  v.  Maguire,  57  N.  Y. 
429. 


211  THE  ANSWER.  §234 

mony  with  its  true  theory.^  But  it  has  the  sanction  of 
uniform  practice,  and  the  approval  of  numerous  courts,^  and 
may  be  regarded  as  the  settled  and  authorized  practice. 
Such  denial  may  be  in  this  form:  The  defendant  denies 
each  and  every  allegation  of  the  complaint  not  lierein  ex- 
pressly admitted.  Express  admissions  are,  of  course,  not 
called  for,  but  they  serve  to  qualify  and  make  certain  the 
extent  of  the  denial. 

If  sucli  combination  of  admissions  and  denials  is  so  framed 
as  to  be  indefinite  or  uncertain  as  to  what  is  admitted  and 
what  is  denied,  the  remedy  is  by  motion  to  make  the  answer 
definite  and  certain,  and  not  by  the  exclusion  of  evidence 
upon  the  trial.^  A  general  denial  and  a  special  denial  of 
the  same  allegation  is  needless,  and  is  not  permitted.*  A 
defendant  may  make  a  specific  denial  of  one  distinct  part  of 
a  complaint,  and  a  general  denial  of  the  remainder  ;  ^  though 
he  may  not  specifically  admit  part  of  an  entire  allegation, 
and  deny  other  parts  of  it.^ 

234.  Allegations  Admitted  by  Failure  to  Deny. — All 
material  allegations  in  the  complaint,  not  traversed  by 
general  or  special  denial,  are,  for  the  purposes  of  the  action, 
admitted  to  be  true.'^  This  rule,  drawn  from  the  common 
law,^  is  to  compel  the  defendant  to  admit  so  much  of  the 
complaint  as  he  can  not  conscientiously  deny.^  Failure  to_ 
deny  a  material  allegation  is  a  conclusive  admission  thereof, 
and  dispenses  with  proof,  as  to  such  allegation ;  ^  and  the 
denial  of  an  allegation  not  traversable  does  not  call  for  proof. 

'  Pom.  Rem.  633  et  seq.  ♦  Blake  v.  Eldred,  18  How.   Pr. 

«  Wheeler  v.  Billings,  38  N.   Y-  240  ;  Fogerty  v.   Jordan,   2  Robt. 

263  ;  Leyde  v.  Martin,  16  Minn.  38  ;  319,  322. 

Kingsley  v.  Oilman,  12  Minn.  515,         *>  Blake  v.  Eldred,    18  How.  Pr. 

517,  518  ;  AUis  v.  Leonard,  46  N,  240. 

Y.  688  ;  Calhoun  v.  Hallen,  25  Hun,        «  Fogerty  v.  Jordan,  2  Robt.  319, 

155  ;   Falls  Co.    v.  Bridge  Co.,   23  322. 

Minn.  186  ;  Ingle  v.  Jones,  43  Iowa,        '  Maguire  v.  O'Donnell,  103  Cal. 

286  ;  Parshall  v.  Tillon,.  13  How.  50. 
Pr.  7.  8  Steph.  PI.  276. 

»  Greenfield  v.  Ins.  Co.,  47  N.  Y.         »  Hartwell  v.  Page,  14  Wis.  49. 
430,  447;  Burley  v.  Bank,  111  U.        '"Lillienthal  v.  Anderson,  1  Idaho, 

S.  216.  673;  Burke  v.  Water  Co.,  12  CaL 


§g  235-236         ORDERLY  PARTS  OF  PLEADING.  212 

Allegations  of  evidential  facts,  or  of  legal  conclusions,  ar§ 
not  issuable ;  ^  and  generally,  allegations  of  time,  place,  and 
value,  are  not  issuable,  but  may,  without  traverse,  be  the 
subject  of  proof.'^  Failure  to  deny  an  allegation  that  is  not 
material  is  not  an  admission  of  its  truth ;  ^  and  a  fact  nol. 
well  pleaded  is  not  admitted  by  failure  to  answer  it^;  *  for  a 
tacit  admission  ought  not  to  help  a  complaint,  and  make  it 
broader  than  it  is  by  allegations.  And  where  material  facts, 
omitted  from  the  complaint,  are  stated  in  the  answer,  the 
defect  in  the  complaint  is  thereby  cured.^ 

II.   OF  NEW   MATTER. 


-C^ 


235.  The  Defense    of  New  Matter.— The  defense    of 
denial,  whether  general  or  special,  does  not  allege  any  fact ; 

l^^^ji^      it  simply  denies  facts  alleged  in  the  complaint,  and  rests  tjie 

I  ,f  contention  upon  the  allegations  so  traversed.     The  defense 

f'*«.*-«-t      of  new  matter,  on  the  other  hand,  does  not  deny  any  fact ; 

""^       without    controverting    any    averment    of    the    complaint, 

^^i-^/lS/,  it  asserts  other  facts  whicli  show  that,  notwithstanding  the 

/  .    facts  stated  in  the  complaint,  the  plaintiff  has  not  a  right  of 

action  against  the  defendant.     It   proceeds   upon  the   tacit 

admission  that  the  issuable  facts  stated  in  the  complaint  are 

i^A^/Qi      true.     This  is  called  "  giving  color,"  which  is  a  prerequisite 

f^hj        justification  for  introducing  the  new  matter,  and  is  a  logical 

concomitant   of   this  defense.     But  this   is   only   a   logical 

^»^^    admission,  made  pro  re  nata,  to  authorize  the  introduction  of 

i7^/_^     new  facts  in  the   defense  ;  the  defendant  may,  in  the  same 

vie      /  answer,  and  as  a  separate  defense,  deny  any  or  all  the  aver- 

liAMA^-f  -^  ments  of  tlie  complaint. 

236.  Philosophy^  this  Defense. — Whether  a  particular 

jj           403  ;  MuKord  v.  EstnidUlo,  32  Cal.  ^  Counoss  v.  Meir,  2  Smith,  E.  D. 

U  ^*fl^       131 ;  Wright  v.  Butler,  64  Mo.  165  ;  314  ;  Fry  v.  Bennett,  5  Sand.  54  ; 

^^^^JliCuA  Steele  v.  Russell,  5  Neb.  211.  Oechs  v.  Cook,  3  Duer,  16L 

^^\              '  Racouillat  v.  Rene,  32  Cal.  450,  *  Harlow  v.  Hamilton,   6  How. 

rfJitPi  ciiUt^45^  ;  Siter  v.  Jewett,  33  Cal.  92  ;  Pr.  475  ;  Fry  v.  Bennett,  5  Sand. 

'        Cutting  V.  Lincoln,  9  Abb.  Pr.  N.  54  :  Clay  Co.  v.  Simonson,  1  Dako- 

S.   436  ;  Bank  v.    Bush,  36  N.   Y.  ta,  403. 

631 ;  Downer  v.  Read,  17 Minn.  493.  «  Shively  v.  L.  &  W.  Co.,  99  CaL 

»  Jenkins  v.  Steanka,  19  Wis.  126;  259. 
Counoss  V.  Meir,  2  Smith,  E.  D.314. 


213  THE  ANSWER.  §  236 

act  is  legally  right,  or  legally  wrong,  may  depend  upon  the 
occasion  upon  whicli   it  is  enacted.     An  act  apparently  un- 
lawful when  considered  by  itself,  may  be  clearly  lawful  when 
considered  in  conjunction  with  the  correlated  circumstances. 
So,  a  statement  of  facts  that  by  themselves  show  a  right  of 
action,  may  not  show  such  right  when  taken  in  connection 
witli  other  and  correlated  facts.     The  defense  of  new  matter 
is  based  upon  this  principle.     It  brings  upon  the  record  other 
facts,  so  correlated  to  those  already  alleged  as  to  form  with 
them  an  entire  group  of  circumstances,  which,  taken  together, 
show  that  the  plaintiff  has  not  the  right  of  action  disclosed  by 
that  part  of  the  facts  disconnected  by  him  from  the  entire 
group,  and  stated  in  the  complaint.     For  example,  in  trespass 
for  assault  and  battery,  the  plea  of  son  assault  demesne  simply 
brings  upon  the  record  the  additional  fact  that  the  plaintiff 
first  assaulted  the  defendant,  and  that  he,  to  save  himself, 
assaulted  and  beat  the  plaintiff.     By  this  complement  of  facts, 
the  segregated  fact  asserted  by  the  plaintiff  is  shown  not  to 
have  wrongfully  invaded  any  right  of  his  ;  and  the  apparent 
liability  of  the  defendant  is  avoided,  without  controverting 
any  fact  alleged  against  him.     So,  an  answer  alleging  the 
fraudulent  representations  of  the  plaintiff  simply  completes, 
upon  the  record,  the  group  of  operative  facts,  part  of  which 
the  plaintiff  had  stated.     In  such  case  the  facts  stated  by  the 
plaintiff  are  not  questioned ;  they  are  simply  placed  in  juxta- 
position with  correlated  facts,  to  show  that,  as  part  of  the  en- 
tire group  of  facts  to  which  they  belong,  they  do  not  give  the 
plaintiff   the    right    which    they   apparently    do   when    dis- 
connected and  standing  alone. 

The  connection  between  the  segregated  facts  stated  by  the 
plaintiff,  and  the  complemental  facts  pleaded  in  defense,  is 
not  always  so  apparent  as  in  the  case  just  stated.  Payment, 
for  example,  is,  generally,  a  defense  of  new  matter.  If  pay- 
ment be  made  at  the  time  the  obligation  is  incurred,  its  con- 
nection with  the  facts  creating  the  duty  to  pay  is  appar- 
ent ;  but  if  payment  be  made  long  after  the  liability  is  in- 
curred, it  is  none  the  less  a  part  of  the  entire  transaction, 
though  removed  in  point  of  time.  Payment,  whenever  made, 
is  one  of  the  entire  group  of  facts  which  must  be  taken  to- 


§  237  ORDERLY  PARTS  OF  PLEADING.  214 

getlier,  to  show  the  true  relation  between  the  parties.  A  plea 
of  the  statute  of  limitations  is  a  defense  of  new  matter  not 
immediately  connected  with  the  facts  stated  by  the  plaintiff ; 
but  it  brings  upon  the  record  a  new  fact,  the  lapse  of  time, 
which,  by  virtue  of  the  statute,  enters  into  the  group  of  facts 
fixing  the  legal  relation  of  the  parties,  only  part  of  which 
has  been  stated  by  the  plaintiff. 

If  the  plaintiff  allege  a  contract  with  the  defendant,  and 
breach  thereof,  the  defendant  may  not  answer  that  he  made 
the  contract  with  another.  The  making  of  a  contract  with 
another  is  not  a  cognate  fact,  and  in  no  way  affects  the  legal 
operation  of  the  facts  stated  by  the  plaintiff.  An  answer 
stating  such  fact  would  not  give  color,  and  therefore  would  not 
make  place  for  the  new  matter.^  The  proper  answer  in  such 
case  would  be  a  denial ;  and  the  making  of  the  contract  with 
another  would  be  an  evidential  fact  in  support  of  the  denial. 
An  answer  of  new  matter  should  be  limited  to  facts  not  era- 
braced  in  a  judicial  inquiry  as  to  the  truth  of  matters  stated 
in  the  complaint.^ 

So,  in  an  action  for  injury  caused  by  the  wrongful  act  of 
the  defendant,  he  may  not  plead  payment  by  a  stranger.  For 
example,  if  property  insured  against  fire  be  burned  by  the 
actionable  negligence  of  the  defendant,  he  may  not  plead 
payment  by  the  insurance  company.  Payment  by  a  third 
party  is  a  fact  that  does  not  belong  to  the  group  of  facts  that 
fix  the  jural  relations  of  the  plaintiff  and  defendant.  Such 
payment  comes  from  a  collateral  source,  and  is  res  inter  alios 
acta?  The  right  of  the  insurer,  in  some  cases,  to  be  reim- 
bursed out  of  the  amount  recovered  from  the  wrong-doer 
who  occasioned  the  loss,  rests  upon  the  equitable  doctrine 
of  subrogation.* 

237,  Dilatory  Answers. — Answers  of  new  matter  may  be 

'  Ante,  71  ;  Post,  240.  Mass.  213  ;  Sherlock  v.  Ailing,  44 

»  Pom.  Rem.  593.  Ind.  184  ;  Klain  v.  Thompson,  19 

3  Perrott  v.  Shearer,  17  Mich.  48 ;  O.   S.   569 ;  Post,   437,   wliere  this 

Yates  V.  Whyte,  4  Bing.  N.  C.  272  ;  doctrine  is  more  fully  stated. 

Cunningham  v.    E.  &  F.    H.    Ry.  *  Weber  v.  Railway  Co. ,  35  N.  J. 

Co.,    102  Ind.   478;   s.   C.    20  Re-  L.  409 ;  Newcombe  v.  Ins.  Co.,  23 

porter,  428 ;  Hayward  v.  Cain,  105  O.  S.  382. 


215  THE  ANSWER.  §238 

classed  as  (1)  dilatory,  (2)  in  bar  of  the  action,  and  (3)  for 
affirmative  relief.  Dilatory  answers,  like  dilatory  pleas  at 
common  law,^  question,  not  the  merits  of  the  demand,  but 
the  occasion  of  the  action  ;  they  relate  to  some  incident  of 
the  particular  suit,  and  not  to  the  merits  of  the  pkiintiff's  de- 
mand, and  are  (1)  to  the  jurisdiction,  or  (2)  in  abatement. 

An  answer  to  the  jurisdiction  questions  the  right  and 
power  of  the  court  to  entertain  the  action,  on  ground  not 
apparent  upon  the  face  of  the  complaint.  If  the  want  of 
jurisdiction  affirmatively  appears  from  the  complaint,  it 
should  be  taken  advantage  of  by  demurrer.^ 

An  answer  in  abatement  sets  up  some  matter  of  fact,  the 
legal  effect  of  which  is  to  overthrow  the  pending  action, 
without  questioning  the  merits  of  the  plaintiff's  demand. 
Among  the  defenses  that  may  be  pleaded  in  abatement  are, 
misnomer,  present  want  of 'capacity  to  sue,  a  defect  of  parties, 
and  the  pendency  of  another  action.  As  at  common  law  a 
plea  in  abatement  was  required  to  give  the  plaintiff  a  better 
writ  or  declaration,^  so,  under  the  new  system,  such  answer 
nnist  furnish  information — sucli  as  the  true  name  of  defend- 
ant, where  misnomer  is  pleaded,  and  the  names  of  necessary 
parties,  where  defect  of  parties  is  pleaded — that  will  enable 
the  plaintiff  to  cure  the  defect  by  amendment,  if  it  be  a  de- 
fect that  can  be  so  cured. 

Generally,  if  the  ground  of  an  objection  that  may  be  made 
by  dilatory  answer  appears  in  the  complaint,  advantage  may 
be  taken  of  it  by  demurrer ;  but  if  it  does  not  so  a^jpear,  the 
facts,  being  new  matter,  must  be  brought  upon  the  record  by 
answer,  and  can  not  be  proved  under  a  denial.  And,  gener- 
ally, where  a  defendant  pleads  in  bar,  instead  of  in  abate- 
ment, he  waives  such  defects  as  might  be  the  subject  of  plea 
in  abatement.* 

2.38.  Answer  of  New  Matter  in  Bar. — A  dilatory  answer, 
whether  to  the  jurisdiction  or  in  abatement,  tends  merely  to 
overthrow  the  pending  action,  by  diverting  it  to  another  jur- 

'  Ante,  58.  ■•  Board  of  Comrs.   v.    Huffraan, 

■'  Post,    291.     For  full  discussion  134  Ind.  1.     Cf.  Black  v.  Thomp- 

of  jurisdiction,  see  Post,  461  et  seq.  son,  136  Ind.  611. 
3  Ante,  69. 


§239  ORDERLY  PARTS  OF  PLEADING.  216 

isdiction,  or  by  suspending  or  abating  it.  An  answer  in  bar, 
whether  a  denial  or  new  matter,  impugns  the  right  of  action^ 
and  controverts  the  plaintiff's  claim.  An  answer  of  denial 
is  always  in  bar ;  an  answer  of  new  matter  is  either  dilatory, 
or  in  bar.  An  answer  of  denial  makes  an  issue,  and  termi- 
nates the  pleadings  ;  an  answer  of  new  matter,  whether  dila- 
tory or  in  bar,  does  not  make  an  issue,  but  calls  for  a  reply. 

Answers  of  new  matter  in  bar  are  either  in  excuse^  or  in 
discharge.  An  answer  of  new  matter  in  excuse  alleges  some 
justification  of  the  matters  charged  in  the  complaint,  and 
shows  that  the  plaintiff  never  had  a  right  of  action  by  reason 
thereof.  An  answer  of  new  matter  in  discharge  shows  some 
release  or  discharge  of  the  duty  arising  from  the  facts  stated 
in  the  complaint.  Of  the  former  class  are,  pleas  of  self- 
defense,  of  infancy,  of  duress,  and  the  like  ;  of  the  latter  class 
are,  pleas  of  payment,  of  release,  of  the  statute  of  limitations, 
and  the  like. 

239.  Equitable  Defenses  in  Legal  Actions. — One  of  the 
'U/tf-,  most  radical  reforms  of  the  new  procedure  is  that  of  allowing 
equitable  defenses  in  actions  founded  on  legal  rights.  For- 
merly, a  defendant  having  an  equitable  defense  to  a  legal 
right  asserted  against  him  was  driven  to  another  action,  in  a 
court  of  equity,  to  establish  his  defense ;  in  the  mean  time 
restraining  his  adversary,  by  injunction,  from  proceeding 
in  the  action  at  law.  But  under  the  new  procedure,  a  de- 
fendant in  an  action  at  law  may  assert  legal  or  equitable 
defenses,  and  he  may  join  both  in  the  same  answer. 

An  equitable  defense,  as  contradistinguished  from  a  legal 
^<  defense,  is  a  right  in  the  defendant  formerly  recognized  and 

^^^  enforceable  only  in  a  court  of  equity,  and  which  would  for- 
merly have  authorized  an  application  to  the  court  of  chan- 
cery for  relief  against  a  legal  liability,  but  which  could  not, 
at  law,  be  pleaded  in  bar.^  An  equitable  defense  is  new 
matter,  and  must  be  so  pleaded ;  it  can  not  be  proved  under 
a  general  denial.*     This  is  so,  because  such  defense  does  not 

'  Allen,  J. .  in  Dobson  v.  Pearce,  357  ;  Kenyon  v.  Quinn,  41  Cal.  325 ; 
12  N.  Y.  156,  166.  Stewart  v.  Hoag,  12  O.  S.  623. 

*  Powers  V.  Armstrong,  36  O.  S. 


217  THE  ANSWER.  §  240 

controvert  the  facts  stated  by  the  plaintiff ;  it'  sets  up  new 
facts  showing  an  equity  in  the  defendant  inconsistent  with 
the  right  asserted  hy  the  plaintiff,  but  not  inconsistent  with 
his  facts  alleged.  In  an  action  for  the  recovery  of  real  estate, 
whereof  the  legal  title  is  in  the  plaintiff,  a  defense  grounded 
on  an  equitable  title  and  right  of  possession  under  it  is  an  equi- 
table defense,  is  new  matter,  and  must  be  specially  pleaded.^ 
Such  defense  does  not  question  the  plaintiff's  facts,  but  ques- 
tions his  apparent  right  by  reason  thereof. 

The  interposition  of  an  equitable  defense  in  such  case  does 
not  convert  a  legal  action  into  an  equitable  one ;  ^  and  an 
issue  upon  such  new  matter,  if  asserted  as  a  mere  defense, 
would  be  triable  to  a  jury.  But  if  the  defendant  goes  fur- 
ther, and  asks  affirmative  equitable  relief, — if,  for  example, 
in  ejectment,  the  defendant  alleges  that  the  land  involved 
was,  by  mistake,  described  in  a  deed  from  him  to  plaintiff, 
and  asks  a  correction  of  the  deed, — such  claim  is  properly 
addressed  to  the  chancery  side  of  the  court. 

240.  Confession  and  Avoidance — Giving  Color. — The 
answer  of  new  matter  in  bar  is  essentially  a  plea  in  confes- 
sion and  avoidance ;  ^  and  like  such  pleas,  it  must  give  color  ; 
that  is,  it  must  admit,  expressly  or  tacitly,  that,  independent^ 
ly  of  the  matter  disclosed  in  the  answer,  the  plaintiff  would 
have  a  right  of  action.*  If,  in  an  action  on  contract,  the  de- 
fendant pleads  infancy,  he  tacitly  admits  the  contract,  in  avoid- 
ing its  obligation.  If  such  answer  does  not  give  color,  there 
is  no  place  for  the  new  matter;  for  example,  a  plea  of  pay- 
ment must  admit  a  debt ;  otherwise,  there  is  no  place  for  the 
payment.  An  answer  of  new  matter  in  bar,  that  does  not 
give  color,  can  not  amount  to  more  than  a  denial,  and  does 
not  require  a  reply .^ 

^  Powers  V.  Armstrong,  36  O.  S.  ter  does  not  stand  in  the  -way  of  a 

357.  defense  of  denial  in  the  same  an- 

*  Webster  v.  Bond,  9  Hun,  437  ;  ewer.     Siter  t.  Jewett,  33  Cal.  92 ; 

Wisner  v.    Ocumpaugh,  71  N.  Y.  Post,  262. 

113.  6  ^bb.  PI.  Br.  639  ;  Sylvis  v.  Syl- 

»  Bauer  v.  Wagner,  39  Mo.  385 ;  vis,  11  Colo.   319  ;  Netcott  v.  Por- 

State  V.  WiUiams,  48  Mo.  210.  ter,  19  Kan.  131  :  Englev.  Biigbee, 

<  Ante,  71  ;  Bliss  PI.  340.     Tacit  40  Minn.   492  ;  State  v.   Williams, 

admission  in  a  defense  of  new  mat-  48  Mo.  210. 
I 


§  241        ORDERLY  PARTS  OF  PLEADING.  -        218 

The  common-law  rule  is  very  strict  in  its  requirement  that 
a  plea  of  new  matter  in  avoidance  shall  confess,  without 
qualification,  the  matters  stated  in  the  declaration.^  In  pleas 
of  the  statute  of  limitations,  of  infancy,  and  the  like,  it  is 
common  to  refer  to  the  right  of  action  stated  in  the  declara- 
tion as  the  "  alleged,"  or  the  "  supposed,"  right  of  action ; 
and  these  expressions  are  held  not  to  qualify  the  confession,* 
the  word  "supposed  "  meaning  no  more  than  "  alleged."  But 
such  use  of  the  phrases  "  if  any,"  or  "  if  any  such  there  be," 
renders  the  confession  hypothetical,  and  vitiates  the  plea.^ 
But  this  rule  has  no  application  to  dilatory  pleas,  for  they 
do  not  relate  to  the  right  of  action.* 

241.  Partial  Defenses — Common-law  Rule. — At  com- 
mon law,  the  rule  seems  formerly  to  have  been  that  the  de- 
fense, whether  by  denial  or  by  avoidance,  should  answer  the 
whole  declaration.  The  defendant  might  plead  several  de- 
fenses to  different  parts  of  the  declaration,  but  the  entire  de- 
fense pleaded  was  required  to  answer  the  whole  complaint ; 
and  if  it  answered  a  part  only,  it  was  considered  as  no  plea, 
and  the  plaintiff  was  entitled  to  a  judgment  by  nil  dicit.^  The 
severe  logic  of  the  common-law  system  in  its  earlier  stages 
demanded  the  perfect  issue  of  a  complete  denial,  and  re- 
garded any  state  of  the  record  admitting  the  plaintiff's  right 
to  recover  as  presenting  no  issue.  Under  this  rigid  devotion 
to  theory,  and  to  logical  forms,  a  defendant  could  avail  him- 
self of  a  partial  defense,  such  as  part  payment,  or  facts  in 
mitigation,  only  by  pleading  the  general  issue,  or  a  special 
plea  answering  the  whole  complaint. 

In  later  time,  the  courts  allowed  a  partial  defense,  and  sus- 
tained a  plea  answering  any  material  and  severable  part  of 
the  declaration,  such  as  part  payment,  or  part  performance, 

1  Taylor  v.   Cole,   3    Term  Rep.  &  E.   489  ;  Conger  v.   Johnston,  2 

292 ;  Griffiths  v.  Eyles,  1  Boss.  &  Den.  96  ;  McCormick  v.  Pickering. 

Pull.  413.  4  Comst.  276. 

5  Gale  V.   Capem,  1  Ad.  &  Ell.  *  Parke,  B.  ,  in  Eavestaff  v.  Rug- 

102  ;  Eavestaff  v.  Russell,  10  M.  &  sell,  10  M.  &  W.  365. 

W.  365.  "  Gould  PI.  vi.  102  et  seq.  ;  Pom. 

3  Gould  V.  Lasbury,  1  Cromp.  M.  Rem.  607,  693. 
«fe  R.  254 ;  Margetts  v.  Bays,  4  A. 

I 


<2  9  THE  ANSWER.  §242 

as  a  good  defense  jiro  tanto^  leaving  the  plaintiff  entitled  to 
judgment  for  the  unanswered  part,  as  by  nil  dicit.  Concur- 
rently with  this  relaxation  of  the  former  rule  requiring  every 
plea  to  answer  the  whole  declaration,  there  arose  the  require- 
ment that  a  plea  answering  only  a  part  of  the  complaint  should 
profess  to  answer  only  such  part ;  and  if  a  plea  answering 
only  a  part  of  the  complaint  assumed  to  answer  the  whole,  it 
was  bad  on  demurrer.^  And  under  this  rule,  every  plea  to 
the  action  was  taken  as  extending  to  the  whole  declaration, 
unless  expressly  limited  to  a  part  thereof.^ 

242.   Partial  Defenses  Under  the  Reformed  Proced-  L4^  '^ 
lire. — The  new  procedure   allows  l!he  defendant  to  plead,  ^-^-^t^ 
in  one  answer,  as  many  grounds  of  defense,   whether  com-  ^1-a^um-<^ 
plete  or  partial,  as  he  may  have,  subject  only  to  the  require-  '^-^  *<''^^ 
ment  that  they  must  not  be  inconsistent,  and  that  each  shall    ^--<-^ 
be  separately  stated  and  numbered  ;  and  where  a  partial  Aq- touMjctZt 
fense  is  pleaded,  it  must  be  designated  and  pleaded  as  par-   dJtluju^^ 
tial.*    If  a  partial  defense  is  pleaded  as  a  defense  to  the  whole        ^ — - 
complaint,  it  will  be  insufficient  on  demurrer.^     This  remnant 
of  the  old  system  is  at  variance  with  the  true  spirit  and  purpose 
of  the  reformed  system,  but  it  is  well  established  by  the  authori- 
ties.    And  under  the  new  system,  as  under  the  old,  a  defense 
not  designated  and  pleaded  as  partial,  will  be   taken  as  in- 
tended for  a  complete   defense  ;  and  if  it  can  be  operative 
only  as  a  partial  defense,  it  will  be  vulnerable  to   demurrer. 
But  this  rule  does  not  apply  to  an  answer  simply  pleading  a 
set-off  less  than  the  plaintiff's  demand,  because  a  set-off  is  not 
strictly  a  defense.^ 

It  has  been  held  that  an  answer  expressly  limited  to  a  part 

1  1  Chit.  PI.  523  ;   SomerviUe  v.  Nickerson,  11  Oreg.  382  ;  Ward  v. 

Stewart,  48  N.  J.  L.  116.  PoLk,  70  Ind.  309. 

»  1  Chit.  PI.  524  ;  Gould  PI."  vi.  ^  Reynolds  v.  Roudabush,  59  Ind. 

104  ;    Gebrie  v.    Mooney,   121   111.  483  ;  Peck  v.  Parchin,  52  Iowa,  46 

255  ;    Orb   v.   Coapstick,    136  Ind.  McMahan  v.  Spinning,  51  Ind.  187 

313.  McLead  v.  Ins.  Co.,  107  Ind.  394 

3  Gould  PI.  vi.  104.  Thompson  v.  Halbert,    109   N.    Y. 

*  Fitzsimmons  V.  Ins.  Co.,  18  Wis.  329;    Fitzsimmons  v.  Ins.    Co.,  18 

234 ;    Davenport    Co.    v.    City  of  W^is.  234. 

Davenport,   15  Iowa,  6  ;  Webb  v.  ^  Mullendore    v.   Scott,   45    Intl. 

113 ;  Curran  v.  Curran,  40  Ind.  473. 


§§243-244        ORDERLY  PARTS  OF  PLEADING.  220 

of  the  complaint  is  not  bad  because  it  in  fact  goes  to  the 
whole  of  the  complaint.^  And  it  has  been  held  that  in  an 
action  for  equitable  relief  an  answer  denying,  or  avoiding, 
some  material  part  of  the  plaintiff's  case,  so  as  to  abridge  or 
modify  the  right  to  relief,  is  good  as  against  a  demurrer, 
though  it  is  not  a  complete  defense  to  the  action.^ 

Many  of  the  codes  provide  that  when  any  distinct  and 
severable  part  of  the  plaintiff's  demand  is  not  put  in  issue  by 
the  answer,  he  may  have  judgment  for  such  part,  without 
prejudice  to  his  rights  as  to  parts  of  his  demand  that  are  dis- 
puted. Under  such  provision,  judgment  may  be  entered  as 
by  nil  dicit  for  the  admitted  part  of  the  plaintiff's  claim,  and 
the  action  proceed  to  trial  as  to  the  disputed  part.^ 

243.  Partial  Defense  and  Special  Denial  Distin- 
guished.— The  partial  defense  must  not  be  confused  with  the 
special  denial.  The  latter  is  a  specific  traverse  of  some  par- 
ticular fact  or  facts  alleged  in  the  adverse  pleading  ;  and  if 
the  particular  matter  so  traversed  is  essential  to  the  cause  of 
action,  the  special  denial  is  a  complete  defense.  If  a  com- 
plaint for  breach  of  warranty  allege,  as  it  must,  the  warranty 
and  a  breach  thereof,  the  defendant  may  deny  only  the  mak- 
ing of  the  warranty,  or  he  may  traverse  only  the  alleged 
breach  ;  either  would  be  a  special  denial,  and  either  would  be 
a  full  and  complete  defense  to  the  action. 

A  partial  defense  always  leaves  in  the  plaintiff  a  right  of 
recovery.  It  may  be  asserted  by  mere  denial,  or  by  pleading 
new  matter.  If  asserted  by  denial,  it  must  be  by  special 
denial,  for  a  general  denial  is  a  complete  defense,  leaving  no 
right  of  recovery  in  the  plaintiff. 

244.  How  New  Matter  in  Defense  to  be  Pleaded. — The 
answer  of  new  matter  should  contain  only  operative  facts, 
and  these  facts  of  the  answer,  like  those  of  the  complaint, 
should  be  stated  in  ordinary  and  concise  language,  and  with 
the  same  fullness,  exclusiveness,  and  certainty,  required  in 

»  Cooper  V.  Jackson,  99  Ind.  566.  537  ;  Benson  v.  Stein,  34  O.  S.  294. 

»  Peebles  v.  Isaminger,  18  O.  S.  Cf.  Weaver  v.  Carnahan,  37  O.  S. 

490.  363. 
"Moore  v.   Woodside.  26  O.   S. 


221  THE  ANSWER.  §244 

tVie  statement  of  facts  constituting  a  caus,e  of  action  in  the 
ooTiiplaint.  Evidential  facts,  conclusions  of  law,  inferences, 
and  aiguments  are  out  of  place  in  any  pleading.  A  few 
illustrative  cases  will  explain  these  requirements. 

That  the  plaintiff  is  not  the  real  party  in  interest,  is  a  de- 
fense of  new  matter,  and  is  not  admissible  under  a  denial.^ 
But  the  mere  statement  that  "  the  plaintiff  is  not  the  real 
party  in  interest "  is  a  legal  conclusion.  The  o^jerative  facts 
which  give  rise  to  this  conclusion  should  be  stated.^  And 
the  allegation  that  some  person  other  than  the  plaintiff  is  the 
real  party  in  interest,  without  stating  the  facts  which  support 
that  conclusion,  is  equally  faulty.^  In  a  defense  of  fraudu- 
lent representation,  or  deceit,  the  same  operative  facts  should 
be  stated  that  are  requisite  in  a  complaint  for  deceit ;  ■*  to 
wit,  the  representation,  its  falsity,  the  scienter  oi  the  plaintiff, 
his  intent,  and  the  defendant's  reliance ;  and  it  must  appear, 
"from  facts  alleged,  that  the  representation  was  as  to  a  ma- 
terial matter,  that  the  defendant  had  a  right  to  rely  upon  it, 
and  that  he  was  thereby  misled  to  his  injury.^  An  allega- 
tion that  the  defendant  was  induced  to  make  the  engage- 
ment sued  on,  "  by  the  fraud  of  the  plaintiff,"  states  a  con- 
clusion, and  is  insufiScient  as  a  defense.^  So,  an  allegation 
that  the  defendant  was  "  induced  by  coercion  "  to  execute 
the  instrument  sued  on  is  insufficient.'^  The  facts  constitut- 
ing the  duress  should  be  stated,  so  that  the  adverse  party 


'  Smith  V.   HaU,   67  N.   Y.   48  ;  52  N.  Y.  621  ;  Ry.  Co.    v.   Super- 

Hereth  v.  Smith,  33  Ind.  514.  visors,  37  Cal.  354 ;  Capuro  v.  Ins. 

»  Shafer  v.  Bronenberg,  42  Ind.  Co.,  39  Cal.  123;  Shook  v.  Singer 

89,  90  ;  Cottle  v.  Cole,  20  Iowa,  481.  Mfg.  Co.,  61  Ind.  520. 

^  Raymond  v.  Pritchard,  24  Ind.  «  Ham  v.  Greve,  34  Ind.  18,  21  ; 

318  ;  Hereth  v.  Smith,  33  Ind.  514  ;  Hale  v.  Walker,  31  Iowa,  344,  355  ; 

Swift  V.  Ellsworth,  10  Ind.  205.  McMurray  v.  Gifford,  5  How.  Pr. 

*  King  V.  Eagle,  10  Allen,  548 ;  14.  Cf.  King  v.  Davis,  34  Cal.  100, 
Wilder  v.  DeCon,  18  Minn.  470  ;  holding  that  after  issue  and  trial 
Joest  V.  WiUiams,  42  Ind.  565.  upon  such  answer,  without  objec- 

*  Keller  v.  Johnson,  11  Ind.  337  ;  tion,    it  will  be  sustained. 
People  V.   San  Francisco,  27  Cal.  '  Richardson  v.   Hittle,   31   Ind. 
656  :    Van  De  Sande  v.    Hall,    13  119 ;   Ins.    Co.   v.  McCormick,    45 
How.  Pr.  458  ;  Simmons  v.  Kayser,  Cal.  580. 

11  Jones  &  S.  131 ;  Lefler  v.  Field, 


§§  245-246         ORDERLY  PARTS  OF  PLEADING.  222 

may  know  what  facts  he  is  to  meet,  and  may  have  their 
legal  sufficiency  determined. 

245.  Denials  and  New  Matter  in  One  Defense. — It  is 

sometimes  necessary  that  a  denial  be  qualified  or  explained 
by  the  introduction  of  new  matter  therewith,  in  order  that 
the  materiality  of  the  denial  shall  appear ;  and  it  is  some- 
times necessary  that  affirmative  matter  be  accompanied  by  a 
denial,  in  order  that  the  defensive  character  of  the  new  mat- 
ter shall  appear.  In  such  cases,  the  common-law  procedure 
allows  denial  and  new  matter  to  be  coupled  in  one  defense, 
called  the  "  special  traverse."  ^  And  this  may,  for  the  same 
reasons,  be  done  under  the  Reformed  Procedure ;  for  in  no 
other  way  can  certain  defenses  be  made  available. 

If  one  be  sued  as  trustee,  on  a  demand  that,  if  it  did  not 
grow  out  of  a  trust  relation,  would  be  subject  to  the  bar  of 
the  statute  of  limitations,  he  may,  in  one  defense,  both  deny 
the  trust  and  assert  the  statute.  In  no  other  way  could  the 
statutory  bar  be  asserted.  In  such  defense,  the  denial  is 
simply  to  make  way  for  the  statute,  and  the  entire  defense  is 
simply  a  plea  of  the  statute.  The  denial  is  used  as  matter 
of  inducement,  and  can  not  be  treated  as  making  an  issue, 
except  for  the  purpose  of  introducing  the  plea  of  the  statute.^ 
In  an  action  to  recover  the  agreed  price  of  property  sold,  the 
defendant  may,  in  one  defense,  deny  that  the  agreed  price 
was  that  stated  by  plaintiff,  allege  the  true  price  agreed 
on,  and  full  payment  thereof.  In  such  case,  it  requires 
both  the  denial  and  the  affirmative  facts  to  assert  the 
defense  of  payment  in  full,  and  the  entire  defense  is  simply 
that  of  payment.  To  allege  simply  that  the  agreed  price 
was  so  much,  and  that  it  has  been  paid,  would  be  an 
argumentative  traverse  as  to  the  price. ^ 

ni.    OF   COUNTER-DEMANDS. 

246.  Recoupment  of  Damages. — In  the  early  and  more 
technical  period  of  the  common  law,  a  defendant  holding  an 

'  Ante,  65.  66.  »  Post,  358. 

'  Colglazier    v.     Colglazier,    117 
Ind.  460,  464. 


223  THE  ANSWER.  §247 

affirmative  demand  against  the  plaintiff  could  not  assert  it  in 
a  pending  action,  but  was  required  to  prosecute  it  in  an  in- 
dependent suit ;  and  after  judgment  in  both  cases,  the  chan- 
cellor miglit  decree  a  set-off  between  the  judgments.  This 
was  on  the  ground  that  such  right  in  the  defendant  is  not 
strictly  a  matter  of  defense  to  the  plaintiff's  claim.  A  de- 
fense is  a  mere  negation  ;  it  controverts  either  the  plaintiff's 
right  to  maintain  the  particular  action,  or  his  right  to  recover. 
A  counter-demand  questions  neither  the  jDropriety  of  the  suit, 
nor  the  right  of  action,  and  so  was  regarded  as  not  a  fit 
matter  for  plea. 

But  it  sometimes  happened  that  a  defendant  would  have  a 
right  of  action  against  the  plaintiff,  growing  out  of  the  mat- 
ters upon  which  the  plaintiff's  claim  was  based  in  the  declar- 
ation ;  and  the  evident  economy  and  fairness  of  requiring 
the  plaintiff  to  account,  in  his  own  action,  for  his  own  disre- 
gard of  the  contract  which  he  sought  to  enforce,  led  to  tlie 
practice  of  allowing  the  defendant  to  reduce  or  extinguish 
the  plaintiff's  claim  by  asserting  his  correlated  right.  For 
example,  if  in  an  action  to  recover  for  goods  sold  and  de- 
livered, the  defendant  had  a  claim  against  the  plaintiff  for 
defect  in  quality  or  quantity  of  the  goods,  he  was  allowed, 
upon  notice  to  the  plaintiff,  to  set  up  such  claim ;  not  as  a 
defense  to  the  plaintiff's  demand,  but  to  reduce  the  amount 
of  his  recovery.!  This  was  called  recoupment,,  from  the 
French  recouper,  to  cut  again.  It  is  not  a  defense,  but  a 
reduction  of  damages  ;  and  is  not  the  subject  of  plea,  but  it 
is  to  be  had  under  a  general  denial  and  notice.  As  stated 
by  Bronson,  J.,  "  It  is  a  matter  that  is  never  pleaded  in  bar. 
It  is  in  the  nature  of  a  cross-action.  The  right  of  the  plaint- 
iff to  sue  is  admitted ;  but  the  defendant  says  he  has  been 
injured  by  the  breach  of  another  branch  of  the  same  contract 
on  which  the  action  is  founded,  and  claims  to  stop,  cut  off, 
or  keep  back,  so  much  of  the  plaintiff's  damages  as  will 
satisfy  the  damages  sustained  by  the  defendant."  ^ 

247.  Set-oif  in  Equity. — While  the  scope  of  the  action 

'  Upton  &  Co.  V.  Julian  &  Co.,  7        *  Nichols  v.  Dxisenbury,  2  N.  Y. 
O.  S.  95.  283. 


u 


§248  ORDERLY  PARTS  OF  PLEADING.  224 

was  thus  enlarged  by  the  doctrine  of  recoupment,  its  opera- 
tion was  still  confined  to  the  particular  subject  of  litigation 
that  gave  rise  to  the  suit ;  and  cross-demands  arising  out  of 
independent  contracts,  and  involving  an  examination  of 
separate  transactions,  could  not  be  settled  in  one  action. 
But  the  English  Court  of  Chancery,  to  prevent  circuity  of 
action,  and  to  avoid  multiplicity  of  suits,  adopted  from 
the  civil  law  a  principle  there  known  as  "  compensation,"  ^ 
whereby  parties  indebted  to  each  other,  under  independent 
contracts,  may  in  one  action  set  off  their  respective  demands, 
and  prevent  recovery  except  for  the  excess  of  the  larger  over 
the  smaller  demand.  This  right  of  set-off,  originating  in 
equity,  was  afterwards  conferred  upon  litigants  in  the  com- 
mon-law courts  of  England  by  statute.^ 

This  just  and  economic  doctrine  that  cross-demands  may 
be  settled  in  one  action,  a  doctrine  in  the  interest  of  indi- 
vidual justice  and  of  public  policy,  but  a  doctrine  that  slowly 
made  its  way  to  favor,  is  to  be  found,  in  some  form  or  other, 
in  perhaps  every  state  of  the  Union.  Under  the  Reformed 
Procedure  it  has  been  extended  and  amplified,  and  is  made 
available  to  a  defendant  by  means  of  a  counter-claim,  set-off, 
or  cross-complaint. 

248.  The  Counter-claim. — The  answer,  as  has  'already 
been  shown,  may  contain  (1)  matters  of  defense,  and  (2) 
grounds  for  affirmative  relief  to  the  defendant.  The_matters 
of  defense  are  either_demals^r  new  matter^in^  avoidance  ; 
the  grounds  for  affirmative  relief  that  may  be  asserted  in  the 
answer  are,  counter-claim  and^et^off.  In  addition  to  these, 
a  defendant  may  have  affirmative  relief  by  cross-complaint ; 
but  this  is  not  properly  a  part  of  the  answer,  though  often 
inserted  therein. 

There  is  a  clear  distinction  between  new  matter  as  a  de- 
fense, and  new  matter  as  ground  for  affirmative  relief.  In 
the  first  place,  a  separate  right  of  action  in  the  defendant  is 
the  essence  of  a  counter-demand,  while  new  matter  constitut- 


ing a  mere~3refense  need  not  constitute  a  right  of  action  in 

»  Haynes'  Outlines  of  Equity,  153,         »  2  Geo.  II.,  c.  22,  A.  D.  1729. 
154,158;  Bisph.  Eq.Jur.  327,  in  nota. 


225  THE  ANSWER.  §  249 

the  defendant.^     In  the  next  place,  a  counter-demand  does 
not  necessarily  attack  the  claim  of  the  plaintiff,  but,  admit-       . 
ting   the   plaintiff's   right    of  action,  it   simply  sets  up  an  l-^c^Li  ^^ 
affirmative  demand ;  on  the  other  hand,  a  defense  of  new    t, 
matter   attacks    the  plaintiff's    right    of  action.      The   one  ^■^^^*-»-'"-* 
admits  the  right  of  the  plaintiff  to  recover,  while  the  other  ^''^^*''^'*"* 
admits  the  facts  by  him  stated,  but  questions  the  right  to  *'*"^  '^^■'^ 
recover.     In  an  action  to  recover  the  price  of  property  sold,  ^-^s  r-^ 
an  answer  of  payment  is  a  defense  of  new  matter  ;  it  admits  /^clJ^<.^ 
the  facts  stated  by  the  plaintiff,  but  asserts  a  new  and  cor-  ]^i^ 
related  fact  which   shows  that,   notwithstanding   the  facts    ,       /  ' 
stated  by  the  plaintiff,  he  has  no  right  of  action.     But  if  in 
such   case   the   defendant  allege   a  warranty,   and   demand  ^^  r^ 
damages  for  breach   thereof,  he  questions  neither  the  facts  Ccim/u^ 
stated  by  the  plaintiff,  nor  his  right  of  action  by  reason  there-  .7^^^ 
of ;  he  asserts  a  separate  right  of  action  in  himself,  growing  (^t^^^^ 
out  of  the  same  contract  relied  on  by  plaintiff.     Such  cross-  g^^^TZ^^^ 
demand  is  called  a  counter-claim.  T^ 

249.  The  Counter-claim,  Continued. — A  counter-claim     ' 
is  a  right  of  action  existing  in  favor   of  a  defendant   and   '-*^  **  ^ 
against  a  plaintiff,  and  arising  out  of  the  contract  or  transac-  ^  /^ 
tion   which   is   the  foundation  of   the   plaintiff's   claim,    or  ,^/ 
connected  with  the  subject  of  the  action.     This  definition  4^^ 

embraces  three  classes  of  counter-demands  ;  (1)  those  arising  '  ^^^ 
out  of  the  contract  upon  which  the  plaintiff  has  based  his  ^ 
action,  (2)  those  arising  out  of  the  transaction  upon  which  ^'^^^^Ij^  ^ 
the  action  is  based,  and  (3)  those  connected  with  the  suhj ecfi-Q^^^     ^ 
of  the  action.     These  three  classes  of  counter-demands  all  bear    ry        «  > 
a  relation  to  the   plaintiff's  demand,  and  they  are  distin-     A  o^ 
guished   by   the   varying    degrees    of   that   relation.      The  [\^ 
counter-claim  of  the  new  procedure  is  of  the  nature   of  re-    ■'  F-  ^ 
coupment  in  the  common-law  procedure,  but  it  is  wider  in  ^    T'' 
its  operation.     By  recoupment,  a  defendant  could  only  reduce  /> , 
or  defeat  the  plaintiff's  recovery ;  he  could  not  himself  re- 
cover against  the  plaintiff.     If  the  plaintiff  wholly  failed  to     '  '' \ 
establish  his  claim,  there  was  nothing  to  recoup  ;  and  if  the   ^^ 
defendant's  demand  exceeded  that  of  the  plaintiff,  he  could      ,  ^""^ 

1  Walker  V.  Ins.  Co.,  U3  N.  Y.  167.  /  ^i  " 


r 


g  250  ORDERLY  PARTS  OF  PLEADING.  226 

not,  by  recoupment,  recover  the  excess.  But  upon  a  counter- 
claim, the  defendant  may  have  affirmative  relief,  irrespective 
of  the  fate  of  the  plaintiff's  claim.^  Counter-claim  is  broader 
than  recoupment  in  that  the  counter-demand  asserted  by  it 
may  be  an  equitable  right ;  and  an  equitable  right  may  be 
so  asserted  when  the  plaintiff's  demand  is  purely  legal.^ 

A  counter-claim  is  substantially  a  cross-action  by  the  de. 
fendant  against  the  plaintiff,  based  upon  a  right  connected 
with  the  ground  of  the  plaintiff's  action,  and  upon  which 
the  defendant  might  maintain  a  separate  action  against  the 
plaintiff ;  and  when  a  counter-claim  is  pleaded,  the  defend- 
ant becomes,  in  respect  thereof,  an  actor^  and  each  party  is  at 
once  a  plaintiff  and  a  defendant  in  the  same  action.^  It 
follows,  that  the  matter  set  up  as  a  counter-claim  must 
constitute,  in  substance  and  in  form,  a  cause  of  action  in 
favor  of  the  defendant  against  the  plaintiff;  ^  and  it  must  be 
such  as  the  court  wherein  it  is  asserted  would  have  juris- 
diction of  in  an  original  action  upon  it.^  A  claim  not  yet 
due  can  not  be  set  up  as  a  cross-demand,  because  there  is  no 
right  of  action  thereon.^  If  a  demand  of  a  character  not 
proper  for  counter-claim  be  so  asserted,  the  remedy  is  gener- 
ally by  demurrer. 

250.  Counter-claim  —  Same  Contract.  —  A  counter- 
claim  of  the  first  class  can  be  pleaded  only  in  an  action 

1  By  statute  in  New  York,  and  Duer,  J.,  in  Vassearv.  Livingston, 

by  judicial  limitation  in  Wisconsin,  13  N.  Y.  248.    Cf.  Bank  v.  Weyand, 

no  counter-claim  is  to  be  allowed  30  O.  S.  126. 

that  does  not,  in  some  way,  qualify,  ^  Cragin  v.  Lovell,  88  N.  Y.  258  ; 

diminish,   or  defeat  the  plaintiff's  Mfg.  Co.  v.  Colgate,  12  O.  S.  344 ; 

recovery.     N.  Y.    Code,  501  ;  Die-  Lyman  v.  Stanton.  40  Kan.  727. 

trich  V.  Koch,  35  Wis.  618.     This  is  «  Martin  v.  Kunzmuller,  37  N  Y. 

in  disregard  of  the  principles  upon  396  ;  Wells  v.  Stewart,  3  Barb.  40 ; 

which  cross-demands  are  allowed  Walker  v.   McKay,   2  Met.   (Ky.) 

to  be  asserted.  294.     But  see  Morrow  v.  Bright,  20 

«  Currie  v.  Cowles,  6  Bosw.  453 ;  Mo.    298  ;    and  Ky.    Flour  Co.   v, 

Morgan  v.  Spangler,  20  O.  S.  38 ;  Bank,  13   S.  W.  R.  910 ;  where  a 

Ry.    Co.   V.    Ry.     Co.,    48     Barb,  claim  against  an  insolvent  assignor, 

355.  not  yet  due,  is  allowed  as  an  equi- 

'  Francis  v.  Edwards,  77  N.   C.  table  set-oflf  against  the   assigned 

271  ;  Bruck  v.  Tucker,  42  Cal.  346.  claim. 

*  Bruck  V.  Tucker,  42  Cal.  346  ; 


227  THE  ANSWER.  §  250 

founded  on  contract,  and  must  be  a  riglit  of  action  in  favor 
of  the  defendant  and  against  the  plaintiff,  arising  out  of  the 
contract  which  is  the  foundation  of  the  plaintiff's  claim.  So 
little  difficulty  will  be  experienced  in  determining  whether 
the  defendant's  claim  arises  out  of  the  contract  upon  which 
the  plaintiff's  claim  is  based,  that  this  class  of  counter-claims 
may  be  disposed  of  by  simply  referring  to  a  few  illustrative 
cases. 

In  an  action  by  lessor  against  lessee,  to  recover  rent  stipu- 
lated for  in  a  lease,  the  lessee  may  set  up  a  counter-claim 
for  breach  by  the  lessor,  of  any  covenant  of  his  contained  in 
the  lease.^  In  an  action  upon  an  implied  agreement  to  pay 
for  work  done,  a  breach  of  the  implied  agreement  that  the 
work  should  be  skillfully  done,  may  be  made  the  subject  of 
a  counter-claim  for  damages  ;  ^  and  so,  if  the  work  be  done 
under  an  express  contract.'^  In  an  action  to  recover  the  pur- 
chase price  of  property  sold,  breach  of  warranty,  or  fraud, 
may  be  pleaded  as  a  counter-claim.'*  A  counter-claim  for 
breach  of  warranty  arises  out  of  the  contract  which  is  the 
foundationof  the  plaintiff's  claim,  and  clearly  falls  within  the 
class  now  under  consideration  ;  but  a  counter-claim  for  fraud 
more  properly  falls  within  the  class  next  to  be  considered. 

1  Orton  V.  Noonan,  30  Wis.  611 ;  was  in  no  sense  a  counter-claim  for 

Cook  V.  Soule,  56  N.  Y.  420  ;  Myers  damages.     The  articles  sold  were 

V.  Burns,  35  N.  Y.  269  ;  Coleman  two  chandeliers,  to  be  put  up  in 

V.  Bunce,   37  Tex.   171  ;  Mayor  v.  defendant's  house.     They  were  un- 

Mabie,  13  N.  Y.  151  ;  Com.  v.  Todd,  skillfully    put    up  ;  and    on    this 

QBush,  708  ;Block  V.  Ebner,  54  Ind.  ground,    without  questioning  the 

544  ;  Green  v.  Bell,  3  Mo.  App.  291.  intrinsic  or  market  value  of  the 

'  Eaton  V.  Woolly,  28  Wis.  628.  articles,   the  defendant  sought  to 

^  Bishop  V.  Price,   24  Wis.   480.  reduce  the  plaintiffs  claim.    Denio, 

Cf.  Moffet  V.  Sackett,  18  N.  Y.  522,  J.,  in  a  dissenting  opinion,  suggests 

where  proof  that  articles  sold  were  that  this  was  a    defense  of  new 

not  of  the  kind  and  quality  con-  matter,  to  wit,  the  negligence  of 

tracted  for  was  admitted  under  an  plaintiff  in  doing  the  wnr-'s   and 

allegation  that  the  goods  were  not  should  have  been  so  pIe«id-HJ. 
worth  more  than  a  named  sum,  be-        *  Timmons  v.  Dunn,  ^^  O.  S.  680  ; 

ing  less   than  that  sued  for,  and  Howie  v.  Rea,  70  N.  C  5"9  ;  Hoffa 

that  such  less  sum  had  been  paid.  v.  Hoffman,  33  Ind.  172  ;  Bounce 

Tlie  court  held  that  such  claim  was  v.  Dow,  57  N.  Y.  16  ;  Love  v,  Old- 

a  mere  defense,  in  diminvition  of  ham,  22  Ind.  51. 
the  value  of  the  goods,  and  that  it 


§251        ORDERLY  PARTS  OF  PLEADING.  228 

251.  Counter-claim  —  Same  Transaction. — A  counter- 
claim of  the  second  class  is  one  arising  out  of  the  transaction 
which  is  the  foundation  of  the  plaintiff's  claim.  Such  coun- 
ter-demand differs  from  one  of  the  former  class  in  this,  that 
it  may  be  asserted  in  an  action  not  founded  on  contract,  and 
that  it  need  not  itself  arise  out  of  contract.  The  term 
"  transaction "  is  broader  and  more  comprehensive  than 
"contract."  A  contract  is  a  transaction  ;  but  a  transaction, 
while  it  may  embrace  a  contract,  may  include  its  incidents 
as  well,  and  it  may  relate  to  matters  entirely  in  tort.  The 
following   cases  will  illustrate  this  class  of  counter-claims. 

In  an  action  on  a  bond  to  indemnify  the  plaintiff,  a  coun- 
ter-claim for  damages  resulting  from  the  fraud  of  plaintiff  in 
obtaining  the  bond  may  be  asserted.^  In  an  action  by  mort- 
gagee against  mortgagor  upon  a  note  and  mortgage  given 
for  the  purchase-money  for  the  premises  mortgaged,  the 
defendant  may  set  up  a'  counter-claim  for  damages  by  reason 
of  the  fraud  of  the  mortgagee,  in  concealing  from  him  mate- 
rial facts  as  to  the  situation  and  extent  of  the  premises.^ 
And  in  such  action  the  mortgagor  may  set  up,  by  way  of 
counter-claim,  an  unpaid  assessment  on  the  land,  being  an 
incumbrance  covenanted  against  in  his  deed  from  the  mort- 
gagee, and  have  the  amount  of  it,  with  interest,  deducted 
from  the  unpaid  purchase-money ;  ^  or  he  may  set  up  a 
counter-claim  for  damages  for  fraud  practiced  by  plaintiff  in 
the  sale  to  defendant.*  Where  the  action  is  for  breach  of 
contract  of  sale,  the  defendant  may  set  up,  as  a  counter- 
claim, a  rescission  of  the  contract  on  the  ground  of  fraud  or 
mistake.^  In  an  action  on  a  promissory  note,  a  counter- 
claim maybe  interposed  for  the  wrongful  conversion  of  prop- 
erty pledged  as  collateral  security  for  the  payment  of  the 
note.^  And  where  a  note  sued  on  was  given  for  a  balance 
found  due  on  settlement,  the  defendant  may,  by  way  of 
counter-claim,  show  a  mistake  in  the  account.'^ 

'  Thompson  v.  Sanders,  118  N.  ■•  Allen  v.  Shackelton,  15  O.  S. 
Y.  252.  145. 

'  Pierce  v.  Tiersch,  40  O.  S.  168.  '  Bruce  v.  Burr,  67  N.  Y.  237. 

»  Craig  V.  Heis,  30  O.  S.  550.  •  Ainsworth  v.  Bowen,  9  Wis.  348. 

'  Garrett  v.  Love,  89  N.  C.  205. 


229  THE  ANSWER.  §252 

In  pleading  a  counter-claim  of  this  class,  it  must  be  made 
to  appear  that  it  arose  out  of  the  same  transaction  out  of 
which  plaintifif's  claim  arose ;  but  a  general  allegation  that 
it  did  so  arise  is  not  sufficient,  it  must  appear  from  facts 
stated.^ 

252.  Counter-claim— Connected  with  Subject  of  Ac- 
tion.— Counter-claims  of  the  third  class  are  those  connected 
with  the  subject  of  the  action.  As  before  stated,  the  three 
classes  of  counter-claims  are  distinguished  by  the  varying 
degrees  of  their  relation  to  the  plaintiff's  demand ;  and  it  will 
be  seen  that  counter-demands  of  this  third  class  bear  a  more 
remote  relation  to  the  plaintiff's  action  than  do  those  of  the 
other  two  classes.  It  is  not  necessary  that  a  demand  of  the 
defendant  against  the  plaintiff,  to  come  within  this  class, 
shall  be  a  demand  growing  out  of  contract,  nor  must  it  arise 
out  of  the  transaction  upon  which  the  plaintiff's  claim  is 
based ;  it  is  requisite  only  that  it  shall  be  connected  with  the 
subject  of  the  plaintiff's  action. 

The  "  subject  of  the  action  "  means,  in  this  connection,  the 
thing  in  respect  to  which  the  plaintiff's  right  of  action  is  as- 
serted, whether  it  be  specific  property,  a  contract,  a  threatened 
or  violated  right,  or  other  thing  concerning  which  an  action 
may  be  brought  and  litigation  had.^  Care  must  be  taken 
not  to  confuse  the  "  subject  of  the  action  "  with  the  "  subject- 
matter  of  the  action."  ^  There  is  some  contrariety  in  the 
decisions,  as  to  the  meaning  of  the  phrase  under  consider- 
ation, and  as  to  what  will  bring  a  counter-demand  into  such 
relation  to  the  subject  of  the  action  as  to  make  it  "  connected  " 
therewith ;  and  the  courts  have  not  always  clearly  dis- 
tinguished between  counter-claims  which  arise  out  of  the 
transaction  on  which  the  plaintiff's  claim  is  founded,  and 
those  which  are  connected  with  the  subject  of  the  action. 

In  an  action  to  restrain  the  use  of  a  trade-mark,  the 
defendant  may,  by  counter-claim,  assert  his  ownership  there- 
of, and  ask  that  the  plaintiff  be  enjoined  from  using  it.     Such 

1  Brown  v.  Buckingham,  21  How.  Cornelius  v.  Kessel,  58  "Wis.  237. 

Pr.  190.    Cf.  Gilpin  v.  Wilson,  53  Cf.  Simpkins  v.  Ry.  Co.,  20  S.  C. 

Ind.  443.  269. 

«  Mfg.  Co.  V.  Hall,  61  N.  Y.  226 ;  »  Ante,  181,  note. 


§253        ORDERLY  PARTS  OF  PLEADING.  230 

right  asserted  by  the  defendant  is  connected  with  the  subject 
of  the  action.^  So,  in  an  action  for  freight,  a  counter-chxim  for 
loss  occasioned  by  the  wrongful  delay  of  the  carrier  may  be 
pleaded.^  And  in  an  action  to  recover  goods,  or  to  restrain 
their  sale,  the  goods  being  the  subject  of  the  action,  the 
defendant  m;iy,  by  counter-claim,  allege  property  in  the  goods 
and  ask  damages  for  the  plaintiff's  interference  therewith.^ 
Where  the  plaintiff  sued  for  injury  to  his  boat,  caused  by  a 
break  in  defendant's  canal,  the  defendant  was  allowed  to 
ask,  by  way  of  counter-claim,  damages  for  the  break  in  the 
canal  caused  by  the  plaintiff's  negligence*  In  an  action  by 
a  lessor  for  rent,  the  tenant  may  assert  a  counter-claim  for 
wrongful  interference  by  the  lessor  with  liis  enjoyment  of  the 
leased  premises  ;  ^  provided,  however,  that  the  interference 
amounts  to  an  eviction,  entire  or  partial.  A  mere  trespass 
by  the  lessor  is  not  a  breach  of  the  contract  for  the  sole  and 
uninterrupted  use  and  enjoyment,  and  damages  therefor  may 
not  be  recouped  or  set  off  in  an  action  for  rent ;  ^  the  rule 
being,  that  where  the  wrongful  act  of  the  lessor  has  deprived 
his  lessee  of  the  use  and  occupancy  of  the  premises,  in  whole 
or  in  part,  he  is  relieved  from  payment  of  rent,  and  may  set 
up  his  eviction  against  a  demand  for  the  rent;  but  if  he 
remains  in  full  possession,  he  can  not  counter-claim  for  an  act 
that  simply  renders  the  use  less  beneficial.''  A  lessee  can 
not  counter-claim  for  injury  caused  by  change  of  the  street 
grade,  unless  covered  by  a  covenant  in  the  lease.^  /^ 

253.  Cross-complaint. — The  cross-demands  which  have 
been  described  as  counter-claims  are  demands  existing  in 
favor  of  a  defendant  and  against  the  plaintiff  in  the  action. 
It  is  not  the  office  of  counter-claim  to  assert  a  right,  or 
demand  relief,  against  a  co-defendant.     In  equity  procedure,  a 

1  Mfg.  Co.  V.  Hall,  61  N.  Y.  226.  Morgan  v.    Smith,   5    Hun,    220 ; 

2  Elwell  V.  Skiddy,  77  N.  Y.  282.  Tinsley  v.  Tinsley,  15  Mon.  B.  458. 
Cf.  Fisk  V.  Tank,  12  Wis.  276.  «  Levy  v.  Bend,  1  E.   D.  Smith, 

3  Ashley  V.  Marshall,  29  N.  Y.  494;  169  ;' Boreel  v.  Lawton,   90  N.  Y. 
Thompson  v.  Kessell,  30  N.  Y.  383.  293  ;    Bartlett  v.   Farrington,    120 

*  McArthur  v.  Canal  Co.,  34  Wis.     Mass.  284. 

139.  '  Dyett  v.  Pendleton,  8  Cow.  727  ; 

*  Goebel  v.  Hough,  26  Minn.  252;     EJgerton  v.  Page,  20  N.  Y.  281. 
Blair  v.  Claxton,   18  N.    Y.   529  ;        «  Gallup  v.  Ry.  Co.,  65  N.  Y.  1. 


231  THE  ANSWER.  §253 

defendant  might  obtain  relief  against  a  co-defendant  by  filing 
a  bill  of  his  own,  called  a  cross-bill.  A  similar  practice  obtains 
under  the  new  procedure  ;  and  in  some  of  the  states  express 
provision  is  made  for  a  cross-complaint,  whereby  a  defendant 
may  ask  relief  against  any  of  the  other  parties,  touching  the 
matters  involved  in  tlie  complaint. 

The  relief  sought  by  cross-complaint  must  grow  out  of,  or 
be  connected  with,  the  subject-matter  of  the  action,  or  must 
affect  property  to  which  the  original  action  relates ;  ^  new  and 
distinct  matters  not  connected  with  the  original  action  can 
not  be  introduced  by  cross-complaint. 

In  an  action  on  a  written  instrument,  the  defendant  may,  by 
cross-complaint,  allege  a  mistake  in  the  writing,  and  ask  to 
have  it  reformed  so  as  to  show  the  real  transaction  between 
the  parties.  As  written,  the  instrument  may  show  a  right  of 
action  in  the  plaintiff ;  as  reformed,  it  may  show  that  he  has 
no  such  right.  The  writing  being  the  best,  and  therefore 
the  exclusive,  evidence  of  the  transaction,  the  true  defense 
can  not  be  proved  until  the  instrument  has  been  reformed ; 
and  for  this  reason,  the  defendant's  cross-action  for  equitable 
relief  should  be  first  tried.  In  ejectment,  if  the  plaintiff 
holds  the  legal  title,  and  the  defendant  has  an  equity  that 
entitles  him  to  possession,  he  may  assert  his  equity,  which  is 
a  good  defense  without  the  aid  of  affirmative  relief ;  but  if 
he  holds  under  a  contract  that  entitles  him  to  a  conveyance 
from  the  plaintiff,  but  not  to  possession  without  such  con- 
veyance, he  may,  by  cross-complaint,  ask  a  decree  for  a 
conveyance,  and  thereby  maintain  his  real  defense — a  right 
to  remain  in  possession  .^ 

Strictly,  a  cross-complaint  should  seek  relief  only  against 
a  co-defendant ;  and  in  analogy  to  the  practice  in  equity,  a 
cross-complaint  should  be  separate  and  distinct  from  the 
answer.  But  it  is  common  practice  to  assert  a  demand  by  a 
defendant  for  affirmative  relief  "  by  way  of  cross-complaint," 

iHurdv.  Case,  32  111.  45;  Cris-  v.  Reynolds,  10  Bush,  286;  Crab- 
man  v.  Heiderer,  5  Colo.  589;  Daniel  tree  V.    Banks,   1  Met.  (Ky.)  484; 
V.  Morrison,  6  Dana,  186  ;  May  v.  Harrison  v.   McCormick,    69  CaL 
Armstrong,    3   Marsh,   J.    J.    262  ;  616. 
Cross  V.  Del  Valle,  1  Wall.  5  ;  Royse  »  Post,  257  et  seq. 


§  254        ORDERLY  PARTS  OF  PLEADING.  232 

and  to  unite  defenses  and  cross-demands,  separately  stated  and 
entitled,  in  the  same  pleading ;  though  matter  that  is  purely 
defensive,  and  matter  used  only  as  ground  for  affirmative 
relief,  ought  not  to  be  coupled  in  one  statement.^  Whether 
process  should  be  issued  on  a  cross-complaint,  is  a  question 
of  practice,  and  must  depend  upon  the  nature  and  the  cir- 
cumstances of  the  particular  case,  and  may  be  governed  by 
statute. 2 

254.  Set-off  Under  the  New  Procedure. — The  sev- 
eral cross-demands  that  have  been  considered,  and  that  may 
be  set  up  by  way  of  counter-claim  or  by  way  of  cross-com- 
plaint, must,  in  their  nature,  bear  some  relation  to  the  plaint- 
iff's action.  There  remains  another  class  of  cross-demands 
to  be  described.  When  the  plaintiff's  action  is  founded  on 
contract,  the  defendant  may  set  up  against  the  plaintiff  any 
right  of  action  arising  also  out  of  contract,  or  ascertained  by 
the  decision  of  a  court,  and  existing  at  the  commencement 
of  the  action.  Such  right,  so  asserted,  is  termed  a  set-off. 
It  differs  from  counter-claim  and  cross-complaint  in  that  the 
right  so  asserted  need  not  be  in  any  way  connected  with,  or 
bear  any  relation  to,  the  plaintiff's  claim.  Both  rights  of 
action  must  arise  out  of  contract,  but  need  not  arise  from 
the  same  contract.  In  many  of  the  states  set-off  is  included 
under  the  term  counter-claim,  and  the  term  set-off  is  not 
employed ;  but  the  use  of  this  term  is  to  be  favored,  because, 
from  its  etymological  meaning,  and  by  its  use  in  equity,  and 
in  the  English  statutes,  to  designate  a  disconnected  demand, 
it  has  come  to  impart  a  distinction  that  ought  not  to  be  lost 
sight  of  in  our  classification,  and  in  our  legal  terminology. 

The  right  of  set-off  is  not  limited  to  demands  growing  out 
of  contract  between  the  parties  to  the  action ;  the  defendant 
may  set  off  a  demand  assigned  to  him  by  a  third  party,  if 
assigned  before  the  action  is  commenced.  It  is  a  general 
principle  of  law,  that  the  assignment  of  a  non-negotiable 
thing  in  action  does  not  affect  any  right  of  set-off,  or  defense, 
existing  at  the  time  of  the  assignment,  or  before  notice  there- 

'  McMannus    v.   Smith,   53  Ind.        '■<  Tucker  v.  Ins.  Co.,  63  Mo.  588. 
211. 


233  THE  ANSWER  §254 

of.  And  the  change  in  the  practice,  introduced  by  the  new 
procedure,  requiring  the  assignee  of  a  right  in  action  to  sue 
thereon  in  his  own  name,  has  not  affected  the  rights  of  the 
parties  in  this  regard ;  the  debtor  may,  now  as  before,  in  an 
action  by  an  assignee,  set  up  any  defense  or  counter-demand 
existing  against  the  original  creditor  at  the  time  of  the 
assignment,  or  acquired  after  the  assignment,  and  before 
notice  thereof. 

But  the  assignment  of  a  non-negotiable  demand  arising  on 
contract,  defeats  a  set-off  of  an  independent  cross-demand  on 
which  a  right  of  action  had  not  then  accrued.^  And  this  will 
be  the  effect  of  such  assignment,  though  the  assignee  be  at 
the  time  insolvent.^  In  an  action  by  the  assignee  of  a  chose 
in  action,  the  defendant  can  not,  on  a  set-off  that  accrued 
against  the  assignor,  have  judgment  against  the  plaintiff  for 
any  excess  thereof. 

Some  courts  have  held  that  unliquidated  damages,  arising 
out  of  contract,  may  be  the  subject  of  set-off,^  while  others 
hold  that  set-off  must  be  restricted  to  liquidated  demands.* 
Perhaps  the  weight  of  authority,  and  the  better  reason,  are 
in  fayor  of  allowing  unliquidated  damages  to  be  made  the 
subject  of  set-off,  in  the  absence  of  statutory  provision  to  the 
contrary.^  A  right  of  action  founded  purely  in  tort  can  not 
be  pleaded  as  a  set-off ;  ^  though  where  the  defendant  might, 
in  an  independent  action,  waive  the  tort  and  sue  as  upon 
contract,  he  may,  in  the  same  way,  assert  his  demand  by  way 
of  set-off.'''     In  an  action  on  contract,  the  defendant  may  in 

1  Fuller  V.  Steiglitz,  27  O.  S.  355.  Boyer  v.  Clark,  3  Neb.  161  ;  Shrop- 

»  Myers  v.  Davis,  22  N.  Y.  489.  shire  v.  Conrad,  2  Met.  (Ky.)  143. 

3  Curtis  V.  Barnes,  30  Barb.  225  ;        '  Swan  PI.  264  ;  Pom.  Rem.  798 

Parsons  v.  Sutton,  66  N.  Y.  92 ;  Bliss  PI.  378,  et  seq.  ;  Max.  PI.  547 
Bidwell  V.   Madison,  10  Minn.  13  ;        «  Devries  v.  Warren,  82  N.  C.  356 

Transp.  Co.   v.    Boggiano,  52  Mo.  Bell  v.  Lesbini,   66  How.  Pr.  385 

294;  Stevens  V.  Able,  15  Kan.  584;  Trotter  v.  Comrs.,  90  N.    C.    455 

Lignot  V.  Redding,  4  E.  D.  Smith,  Shelly  v.  VarnarsdoU,  23  Ind.  543 

285 ;  Needham  v.  Pratt,  40  O.  S.  Valentine,  J. ,  in  Berry  v.  Carter, 

186.  19  Kan.  140  ;  Gantt,  J.,  in  Boyer  v, 

*  Ricketson  v.  Richardson,  19  Cal.  Clark,  3  Neb.  161. 
330  ;  Frick  v.  White,  57  N.  Y.  103  ;        '  Brady  v.  Brennan,  25  Minn.  210. 
Johnson    v.    Jones,    16    Mo.    494 ; 


§255  ORDERLY  PARTS  OF  PLEADING.  £34 

this  way  assert  a  claim  for  property  wrongfully  converted  by 
the  ijlaintiff,^  or  for  property  tortiously  taken,^  or  for  pastur- 
ing plaintiff's  cattle,  wliere  the  liability  arose  from    trespass.* 

255.  Equitable  Set-otis. — There  is  a  class  of  cross- 
demands  available  to  a  defendant  only  in  equity,  and  known 
as  "  equitable  set-offs."  Such,  for  example,  is  the  case  of 
mutual  credits  based  by  each  upon  the  fact  of  the  other's 
indebtedness ;  or  a  joint  demand  against  an  insolvent  plaint- 
iff and  another.  In  such  cases,  the  manifest  injustice  of 
allowing  full  recovery  to  the  plaintiff  gives  rise  to  an  equity 
in  the  defendant  to  insist  on  a  set-off,  notwithstanding  he 
has  no  such  right  at  law.* 

It  has  been  held  that  where  an  insolvent  debtor  who  makes 
an  assignment  for  the  benefit  of  creditors  is  indebted  to  a 
bank  with  which  he  has  money  on  deposit,  the  bank  may 
apply  the  deposits  as  a  credit  on  its  debt,  although  the  debt 
had  not  matured  at  the  time  the  assignment  was  made.^ 
And  where  one  entitled  to  share  in  the  distribution  of  a  trust 
fund,  is  indebted  to  the  fund,  and  is  insolvent,  his  indebted- 
ness may,  in  equity,  be  set  off  against  his  distributive  share  ; 
and  the  right  of  set-off  will  not  be  defeated  by  the  assign- 
ment of  his  claim,  though  made  before  the  amount  of  his 
indebtedness,  or  of  his  distributive  share,  is  ascertained.^ 
Where  an  insolvent  creditor  transfers  an  unmatured  claim 
arising  upon  contract,  and  the  debtor  holds  a  similar  claim 
against  such  insolvent  assignor,  then  due,  he  may  set  it  off 
against  the  assignee,  after  the  maturity  of  his  claim. '^  This 
rule  is  based  upon  considerations  of  equity,  and  is  to  protect 
him  whose  claim  is  due  from  the  hardship  of  losing  it  while 
he  is  compelled  to  pay  his  own  debt,  assigned  before  due.^ 

'  Gordon  v.  Bruner,  49  Mo.   570  ;  Bank  v.  Hemingray,  34  O.  S.   381  ; 

Colt  V.  Stewart,  50  N.  Y.  17.  Barbour  v.  Bank,  50  O.  S.  90. 

«  Eversole  v.  Moore,  3  Bush,  49  ;  '  Ky.  Flour  Co.  v.  Bank,  90  Ky. 

Haddix  v.  Wilson,  3  Bush,  523.  235. 

3  Norden  v.  Jones,  33  Wis.  600.  ^  King  v.  Armstrong,  50   O.  S. 

*  2  Sto.  Eq.  Jur.   1435  to  1437b  ;  222. 

Bisph.  Eq.  327  ;  BHss  Pi.  383  ;  Baker  '  Armstrong  v.  Warner,  49  O.  S. 

V.  Kinsey,  41 0.  S.  403  ;  Gay  v.  Gay,  376. 

10  Paige,  369  ;  Lee  v.  Lee,  31  Ga.  »  Pom.  Rem.  163. 
26  ;  Jeffries  V.  Evans,  6  B.  Mon.  119; 


235  THE  ANSWER.  §  256 

A  defendant,  sued  on  his  promissory  note  indorsed  to  the 
plaintiff  after  maturity,  may,  in  equity,  set  off  an  overdue 
joint  note  made  by  the  plaintiff  and  another,  both  of  whom 
are  insolvent.  And  if  such  joint  note  be  at  the  time  merged 
in  a  joint  judgment  against  the  makers,  such  judgment  may 
be  so  set  off.^  The  merger  of  the  note  in  the  judgment  is 
not  so  perfect  as  to  preclude  the  judgment  creditor  from 
asserting  his  demand  as  an  equitable  set-off.  And  it  may  be 
said  that,  generally,  equity  will  enforce  the  right  of  set-off, 
so  far  as  mutual  demands  equal  each  other,  if  they  have 
grown  out  of  the  same  or  connected  transactions,  or  if  one 
formed  a  consideration  for  the  other,  and  the  party  against 
whom  the  right  is  asserted  is  insolvent. 

These  equitable  set-offs  may  be  asserted  under  the  new 
procedure,  which  has  affected  methods,  but  not  rights. 

256.  General  View  of  Cross-demands. — It  is  the  policy 
of  the  new  procedure  to  enable  the  parties  to  settle,  in  one 
action,  all  claims  existing  between  them,  so  far  as  this  may 
be  done  without  inconvenience  to  the  parties,  or  prejudice  to 
their  rights.  The  provisions  for  asserting  a  cross-demand — 
by  way  of  counter-claim,  cross-complaint,  and  set-off — confer 
a  privilege,  but  do  not  impose  an  obligation.  A  defendant 
may,  notwithstanding  these  provisions,  withhold  his  cross- 
demand,  and  enforce  it  in  a  separate  action  ;  though  in  some 
jurisdictions  he  can  not  recover  costs  in  a  subsequent  action 
thereon. 

New  matter  may  constitute  both  a  defense  and  a  counter- 
claim. In  an  action  for  breach  of  contract  of  employment, 
the  defendant  may  allege  the  failure  of  plaintiff  to  perform 
his  covenants  under  the  contract  of  employment,  (1)  as  a 
justification  for  plaintiff's  discharge,  and  (2)  as  a  ground  of 
counter-claim  for  damages.^  Such  manifold  use  of  the  same 
facts  should  not  obscure  the  distinction  between  defenses 
and  counter-demands.  The  distinction  is  not  lost ;  it  simply 
inheres  in  the  same  set  of  facts.  The  same  facts  negative 
the  plaintiff's  right  to  recover,  and  at  the  same  time  show  a 

'  Baker  v.  Kinsey,  41  O.  S.  403.  '■>  Mfj?.  Co.  v.  Colgate,  13  O.  S. 
Cf.  Sarchet  v.  Sarchet,  2  Ohio,  320.     344.  355. 


§  257  ORDERLY  PARTS  OF  PLEADING.  236 

riglit  of  recovery  in  the  defendant,  and  thus  become  both  a 
shield  and  a  weapon.  This  conjuncture  of  defense  and 
counter-claim  occurs  most  frequently  in  a  class  of  defenses 
requiring  some  affirmative  equitable  relief  to  make  them 
available.     These  will  be  treated  of  in  the  next  three  sections. 

Sometimes  a  statement  of  facts  is  in  form  a  counter-de- 
mand, though  in  effect  only  a  defense  ;  as,  where  the  plaintiff 
sues  on  a  claim  assigned  to  him,  and  the  defendant  asserts  a 
counter-demand  against  the  assignor,  that  is  available  under 
the  law,  against  the  assignee.  In  such  case  the  right  of  the 
defendant,  called  an  equity,  is  defensive  only,  for  it  can  be 
used  only  to  reduce  or  extinguish  the  plaintiff's  claim.  The 
defendant  could  not  maintain  an  independent  action  on  it 
against  the  plaintiff,  and  he  can  not  have  judgment  against 
the  plaintiff  for  any  excess  thereof  over  his  claim. ^ 

An  individual  may  not  maintain  an  action  against  the 
State,  without  its  consent ;  but  when  an  individual  is  sued 
by  the  State,  he  may  assert  a  counter-claim  against  the  State. 
This  is  on  the  principle  that  he  thereby  seeks  only  to  show 
that  he  does  not  owe  the  demand  sued  for ;  and  accordingly, 
he  can  not  recover  for  any  excess  of  his  claim  over  that 
asserted  by  the  State  .^ 

Generally,  where  a  new  party  is  necessary  to  a  final  de- 
cision upon  the  defendant's  claim  for  affirmative  relief,  the 
codes  provide  for  the  bringing  in  of  new  parties,  so  that  the 
defendant's  claim  may  be  fully  and  finally  adjudicated  in 
the  one  action. 

257.  Defenses  Dependent  on  Affirmative  Equitable 
Relief. — Sometimes  a  defendant  must  have  affirmative  equi- 
table relief  touching  his  defense,  in  order  to  make  it  available 
against  the  plaintiff's  claim.  For  example,  an  action  is 
brought  upon  a  written  contract,  by  the  terms  of  which  the 
defendant's  liability  is  clear ;  but  the  part  of  the  writing 
from  which  his  liability  arises  was  inserted  by  mistake  or 
fraud.     The  real  contract  would  not  show  such  liability,  but 

1  Ferreira  v.  Depew,  4  Abb.  Pr.  Y.  248,  252,  Cf.  Walker  v.  Ins. 
131 ;  Vassear  v.  Livingston,  13  N.    Co.,  143  N.  Y.  167. 

*  Kentucky  v.  Todd,  9  Ky.  708. 


237  THE  ANSWER.  g  25B 

the  writing  does ;  and  upon  the  trial  of  an  issue  as  to  what 
were  the  terras  of  the  contract,  the  writing  itself  is  the  best 
evidence.  The  defendant's  real  defense  in  such  case  is,  that 
he  did  not  make  the  promise  sued  on.  But  he  can  not  deny- 
that  he  made  the  writing;  and  the  writing  shows  that  he 
made  the  promise,  and  it  is  the  exclusive  evidence  upon  that 
point.  It  is  evident  that  to  make  his  real  defense  available, 
the  defendant  must  first  impugn  the  writing.  This  he  may 
do  by  way  of  a  cross-action,  in  the  nature  of  a  bill  in  equity, 
alleging  the  real  contract,  the  mistake  or  the  fraud  in  the 
writing,  and  asking  that  it  be  reformed  so  as  to  conform  to 
the  intention  of  the  parties  and  express  their  real  contract. 
Such  demand  of  affirmative  relief  is  not,  of  itself,  a  defense 
to  the  plaintiff's  claim  ;  it  is  simply  to  prepare  the  defendant 
to  maintain  and  make  available  his  real  defense,  non  assumsit. 
Formerly,  a  defendant  in  such  case  was  driven  to  an  inde- 
pendent suit  in  equity  to  reform  the  writing ;  but  under  the 
new  procedure,  which  authorizes  a  defendant  to  assert  equi- 
table cross-demands,  as  well  as  equitable  defenses,  he  may 
have  the  affirmative  relief,  and  assert  his  defense  dependent 
thereon,  in  the  same  action. 

258.  Dependent  Defenses,  Continued. — In  an  action 
for  the  possession  of  property  under  a  chattel  mortgage,  the 
defendant  alleged  a  mistake  in  the  mortgage,  and  averred 
that  as  it  was  intended  to  be  drawn,  the  debt  was  not  yet 
due ;  but  he  did  not  ask  for  a  correction  of  the  instrument. 
It  was  held  that  the  defendant  could  not  prove  the  mistake 
and  have  the  same  benefit  as  though  the  instrument  had  been 
reformed ;  that  equity  will  aid  in  such  case  by  reforming  tlie 
instrument,  not  by  giving  effect  to  it  without  being  reformed  ; 
and  that  when  such  equitable  relief  is  not  invoked,  the  in- 
strument, as  written,  must  have  its  proper  legal  effect.'  The 
answer  stated  a  good  defense,  but  it  was  a  legal  defense,  not 
equitable,  and  could  not  be  made  available  upon  the  trials 
without  first  reforming  the  mortgage  ;  and  in  the  absence  of 
a  prayer  for  reformation,  there  was  no  place  for  evidence  to 
vary  or  contradict  the  writing.     In  an  action  for  the  conver- 

1  FoUet  V.  Heath,  15  Wis.  601. 


§  259  ORDERLY  PARTS  OF  PLEADING.  238 

sion  of  crops,  the  answer  alleged  a  reservation  of  the  crops, 
and  averred  that  by  mistake  iu  a  conve3'-ance  b}-  the  defend- 
ant the  reservation  was  omitted.  The  court  said :  ''  When 
a  mistake  in  a  deed  or  written  instrument  is  relied  on,  the 
pleading  should  go  further  than  in  this  case  it  did.  It  should 
have  prayed  affirmative  relief;  that  the  instrument  be  re- 
formed so  as  to  show  the  contract  intended  to  be  embodied 
in  it,  and  that,  when  so  reformed,  it  might  be  allowed  as  a 
bar  to  the  suit,  or  to  so  much  thereof  as  it  would  bar.  This 
might  be  done  by  an  answer  in  the  nature  of  a  cross-bill  in 
equity."  ^  In  an  action  for  breach  of  covenant  against  in- 
cumbrances, the  alleged  breach  being  an  outstanding  mort- 
gage, the  defendant  may  answer  that  the  agreement  excepted 
such  mortgage  from  the  operation  of  the  covenant,  and  that 
the  exception  was,  by  mistake,  omitted  from  the  deed.^  In 
such  case  the  real  defense  is  purely  legal — the  exception  of 
the  mortgage  from  the  covenant.  The  alleged  mistake  is 
not  in  itself  defensive,  and  is  not  any  part  of  the  defense, 
and  is  not  necessary  to  a  statement  of  the  defense;  it 
precludes  proof  of  the  real  defense,  and  its  correction  is  a 
prerequisite,  not  to  the  assertion,  but  to  the  proof,  of  the 
new  matter  in  bar. 

259.  Dependent  Defenses,  Continued. — The  kind  of 
defense  under  consideration  in  the  last  two  sections  is  of  fre- 
quent occurrence  in  actions  to  obtain  possession  of  real  prop- 
erty, wherein  it  may  be  necessary  to  correct  mistakes  in  the 
plaintiff's  ^r  the  defendant's  muniments  of  title,  in  order 
that  the  defendant's  superior  right  may  be  made  to  appear  by 
competent  evidence.  For  example,  the  defendant  may  allege 
that  the  land  in  question  was,  by  mistake,  included  in  the 
plaintiff's  deed,  whether  such  deed  be  from  the  defendant,  or 
from  a  former  owner  under  whom  both  claim   title ;  or  he 

'  Conger  v.  Parker,  29  Ind.  380 ;  only  a  defense,  and  does  not  en- 
King  v.  Ins.  Co.,  45  Ind,  43.  Cf.  title  the  defendant  to  aflBrmative 
Pitclier  V.  Hennessey,  48  N.  Y.  equitable  relief;  a  position  which 
415,  423.  that  court   has  since  abandoned. 

»  Haire  v.  Baker,  5  N.  Y.  875.     In  Pitcher  v.  Hennessey,  48  N.  Y  415, 

this  case    the    Court    of    Appeals  422  ;  Bartlett  v.  Judd,  21  N.  Y.  200, 

suggested  that  such  answer  sets  up  203. 


239  THE  ANSWER.  §  260 

may  allege  that  the  land  was,  by  mistake,  omitted  from 
plaintiff's  deed  to  him.  In  such  cases  the  real  defense  is 
dependent,  not  for  its  assertion,  but  for  its  establishment,  on 
the  correction  of  the  alleged  mistake.^ 

In  cases  falling  within  the  principle  under  consideration, 
the  facts  constituting  a  defense  to  the  action,  and  those  en- 
titling the  defendant  to  affirmative  relief,  should  be  separ- 
ately stated,  the  latter  b}''  way  of  cross-complaint,  the  former 
as  an  answer ;  and  the  ground  for  affirmative  relief  should 
be  first  tried,  because  a  decree  upon  that  branch  of  the  case, 
if  for  the  defendant,  will  furnish  him  the  evidence  to  support 
his  defense,  and  if  for  the  plaintiff,  may  virtually  terminate 
the  action.^  In  some  cases  the  defense  to  the  action  may  be 
triable  to  a  jury,  while  the  demand  for  affirmative  equitable 
relief  is  always  triable  to  the  judge,  sitting  as  chancellor. 
Again,  evidence  to  contradict  or  vary  the  writing  is  neither 
competent  nor  relevant  as  to  the  defense  to  the  plaintiff's 
action,  but  is  admissible  only  in  support  of  the  defendant's 
cross-action. 

260.  Cross-demands,  How  Pleaded. — When  a  defendant 
seeks  affirmative  relief,  he  becomes,  quoad  hoc,  a  plaintiff,^ 
and  must  state  the  facts  constituting  his  right  of  action  in 
the  same  manner  and  with  the  same  degree   of  particularity 

"  It  miist  be  conceded  that  the  first  having  the  affirmative  relief, 
courts  have  not,  in  all  cases,  con-  Where  an  equitable  right  furnishes 
sistently  observed  the  distinction  both  a  defense  and  ground  for  affir- 
between  defenses  dependent  upon  mative  relief,  the  defendant  ?ua//as- 
affirinative  equitable  relief,  and  sert  it  as  a  defense  merely,  or  he 
equitable  defenses  not  so  dependent,  may  assert  it  both  as  a  defense  and 
Hoppough  V.  Struble,  60  N.  Y.  430;  as  ground  for  relief .  But  where,  to 
Collins  V.  Rogers,  63  Mo.  515.  And  make  such  right  available  as  a  de- 
Mr.  Pomeroy,  in  his  excellent  work  fense,  the  defendant  must  first  have 
on  Remedies,  somewhat  obscures  affirmative  equitable  relief  touch- 
the  subject  by  failure  to  observe  ing  it,  he  viust  assert  it  both  as  a 
such  distinction.  Pom.  Rem.  91  et  defense  and  as  ground  for  affirma- 
seq.,  and  cases  cited.  Some  equi-  tive  relief.  Bliss  PI.  348-351. 
table  rights  of  the  defendant  are  de-  *  Massie  v.  Stradford,  17  O.  S. 
fensive    merely  ;    some    are    both  596. 

ground  of  defense  and  for  affirma-  ^  Ewing  v.  Pattison,  35  Ind.  326, 

tive  relief  ;  and  some  of  the  latter  330. 
class  can  be  made  available  only  by 


g  260  ORDERLY  PARTS  OF  PLEADING.  240 

that  would  be  requisite  if  he  were  stating  them  in  a  com- 
plaint,^ except  that  he  may  refer  to  and  adopt  matters  stated 
in  the  complaint. 

In  matter  of  substance,  the  pleading  must  show  a  right  of 
action  in  the  defendant  and  against  the  plaintiff,  and  it  musty 
in  addition,  show  that  the  demand  so  asserted  comes  within 
the  jurisdiction  of  the  court,  and  that  it  belongs  to  some  one 
of  the  classes  of  counter-demands  proper  to  be  set  up  in  the 
pending  action.  For  example,  a  demand  arising  out  of  the 
transaction  which  is  the  foundation  of  the  plaintiff's  claim, 
and  for  that  reason  available  as  a  counter-claim,  should  be 
shown,  by  facts  stated,  to  have  such  relation  to  the  plaintiff's 
claim  ;  a  general  allegation  that  it  so  arose  is  not  sufficient.^ 
And  a  set-off,  available  because  it  accrued  to  the  defendant 
before  the  action  was  commenced,  must  be  shown  to  have  so 
accrued ;  ^  a  mere  allegation  that  the  plaintiff  "  is  indebted,'* 
and  that  the  sum  claimed  "  is  now  due,"  is  insufficient.* 

In  matter  of  form,  the  cross-demand  should  be  stated  separ- 
ately from  matters  of  mere  defense;  and  even  where  the 
same  facts  constitute  both  a  defense  and  a  counter-claim,  some 
authorities  hold  that  they  should  be  twice  stated  in  separate 
divisions.^  In  no  other  way  can  their  sufficiency  in  each  as- 
pect be  separately  questioned  or  determined.  If  matters  of 
defense  and  matters  of  cross-demand  are  commingled  in  one 
statement,  it  is  a  defect  of  form,  and  if  not  remedied  by 
motion  will  be  treated  as  waived.^  In  order  that  the  plaint- 
iff may  know  what  use  the  defendant  intends  to  make  of  his 
alleged  facts,  he  should  in  some  way  indicate  his  purpose  to 
rely  upon  certain  allegations  for  affirmative  relief ;  and  in 
most  jurisdictions  this  is  required,^  though  in  some  cases  it 

•  Holgate  V.  Broome,  8  Minn.  243;  '  Campbell  v.  Routt,  42  Ind.  410, 

HUl  V.  Butler,  6  O.  S.  207.  415. 

'  Brown  v.  Buckingham,  21  How.  «  Mfg.  Co.  v.  Colgate,  12  O.   S. 

Pr.  190.     Cf.  GUpin  v.  Wilson,  53  344. 

Ind.  443.  •>  Bates  v.   Rosekrans,  37  N.  Y. 

'  Gregory  v.    Gregory,   89    Ind.  409  ;    McConihe    v.    Hollister,    19 

345  ;  Rumsey  v.  Robinson,  58  Iowa,  Wis.  269  ;  Hutchings  v.   Moore,  4 

225.  Met.  (Ky.)  110  ;  Wilder  v.  Boynton, 

«  Rice  V.  O'Connor,  10  Abb.  Pr.  63  Barb.  547  ;  McAbee  v.  Randall, 

362  ;  May  V.  Davidge,  44  Hun,  342.  41  Cal.  136  ;  Life  Ass.  Soc.  v.  Cuy- 


241  THE  ANSWER.  §261 

is  not.*  The  usual  manner  of  designating  a  cross-demand  is 
to  entitle  it  a  "  cross-complaint,"  "counter-claim,"  or  "set- 
off." In  the  absence  of  such  designation,  a  prayer  for 
affirmative  relief  has  been  held  to  indicate  sufficiently  the 
intention  of  the  pleader.^ 

261.  Joinder  of  Defenses. — The  new  procedure  contem- 
plates the  filing  of  but  one  answer  in  an  action,  and  author- 
izes the  joinder  therein  of  as  many  grounds  of  defense,  coun- 
ter-claim, and  set-off,  as  the  defendant  may  have,  whether 
legal  or  equitable,  or  both.  At  common  law,  dilatory 
pleas  must  be  pleaded  at  a  preliminary  stage  of  the  ac- 
tion, and  in  due  order ;  ^  and  a  plea  in  bar  is  a  waiver  of 
any  objection  that  should  be  asserted  in  limine  by  a  dilatory 
plea.*  Under  the  new  procedure,  these  defenses — dilatory 
and  in  bar — may  all  be  joined  in  one  answer,^  and  the  jjlea  in 
bar  is  not  a  waiver  of  the  dilatory  plea  joined  therewith.  In 
case  of  such  joinder,  it  is  the  better  practice  to  try  first  the 
issue  made  upon  the  dilatory  plea,  for  if  this  be  decided  for 
the  defendant,  there  is  neither  occasion  nor  authority  to  try 
the  issue  involving  the  merits  ;  though  in  some  courts  a  con- 
trary practice  obtains,  and  the  same  verdict  is  required  to 
respond  to  both  issues,  separately. 

ler,  75  N.  Y.   511,  514 ;  StoweU  v.  Ind.  327  ;  Bond  v.  Wagner,  28  Ind. 

Eldred,  39  Wis.  614.  462  ;  Erb  v.  Perkins,  33  Ark.  428  ; 

'  Gilpin  V.  Wilson,  53  Ind.  443 ;  Gardner  v.  Clark,   21  N.  Y.   399 ; 

Holmes  v.  Richet,  56  Cal.  307.  Sweet  v.    Tuttle,   14  N.    Y.    465  ; 

'  WisweU  V.  TheCong.  Ch.,  14  O.  Supervisors    v.    Van    Stralen,    45 

S.  31.     "The  answer  of  a  defend-  W::.   6'.^:  Freeman  v.  Carpenter, 

ant  may  be  treated  as  a  cross-peti-  V.W:,.  126;  Little  v.  Harrington, 

tion,  and  the  proper  relief  granted  .1  Mo.  390.     Contra,  Hopwood  v. 

under  it,  if  it  contain  a  prayer  for  Patterson,  2  Ore.  49,  holding  that 

judgment  and  the  necessary  aver-  answers  in  the  nature  of  pleas  in 

ments  to  show  his  right  to  such  abatement  should  now,  as  formerly, 

relief,   under  the  proceedings  in-  be  pleaded  and  determined  before 

stituted  against  him,  although  he  answer  to  the  merits  is  interposed  ; 

does  not,  in  terms,  denominate  the  and  that  the  provision  as  to  joinder 

paper    he    files,  a  cross-petition."  does  not  apply  to  defenses  that  can 

Kloune  v.  Bradstreet,  7  O.  S.  322.  not  be  tried  together.     Tliere  is  a 

*  Ante,  59.  statutory  provision  of  like  effect  in 

*  Gould  PI.  V.  13,  153 ;  DeSobry  Indiana.    Dwiggins  v.   Clark,    94 
▼.  Nicholson,  Z  Wall.  420.  Ind.  49  :  Rev.  Stat.  365. 

*  Thompson   v.    Greenwood,    28 

16 


§  262  ORDERLY  PARTS  OF  PLEADING.  242 

The  codes  make  no  limitation  upon  the  joinder  of  defenses, 
except  the  implied  limitation  that  inconsistent  defenses  shall 
not  be  joined.  The  rule  in  equity  is,  that  a  defendant  may 
not  set  up  two  defenses  so  inconsistent  that  if  the  facts  in 
one  are  true,  those  in  the  other  must  be  untrue  in  point  of 
fact.^  Under  the  new  procedure,  there  is  some  contrariety 
in  the  decisions,^  but  the  rule  established  by  the  weight  of 
authority,  both  in  reason  and  in  numbers,  is  in  harmony  with 
the  rule  in  equity,  that  two  defenses  so  inconsistent,  in  point 
of  fact,  that  both  can  not  be  true,  so  that  the  establishment  of 
one  is  the  destruction  of  the  other,  can  not  be  joined. 

262.  Joinder  of  Defenses,  Continued. — In  the  applica- 
tion of  the  foregoing  rule,  the  courts  have  distinguished  be- 
tween inconsistency  arising  from  a  direct  contradiction  of 
facts  averred,  and  that  inconsistency  which  arises  by  implica- 
tion of  law.  For  example,  a  defense  of  new  matter  involves 
an  admission  of  the  truth  of  the  facts  stated  in  the  complaint ; 
but  this,  as  has  been  shown,^  is  onl}^  a  logical  admission  of 
their  truth,  requisite  for  the  introduction  of  new  matter  in 
defense,  and  not  inconsistent  with  their  falsity  in  fact,  which 
may  be  asserted  in  a  separate  defense  in  the  same  answer. 
When  a  defendant  can  truthfully  deny  the  allegations  of  the 
complaint,  he  is  not  required  to  admit  them  to  be  true  in 
fact,  as  the  condition  upon  which  he  may  avail  himself  of 
new   matter   in   defense.     He   may   both   deny   and   avoid, 

'  Hopper  V,  Hopper,  11  Paige,  46.  warranted, and  that  is  not  sustained 
*  Mr.  Pomeroysays  :  "  Assuming  by  the  cases  which  he  cites  to  sup- 
that  the  defenses  are  utterly  incon-  port  him.  It  would  be  a  reproach 
sistent,  the  rule  is  established  by  to  our  system  of  procedure  if  de- 
an overwhelming  weight  of  judicial  fendants  were  allowed  to  set  up 
authority,  that,  unless  expressly  defenses  ad  ?i5iiM7?i,  without  regard 
prohibited  by  the  statute,  they  may  to  whether  they  were  true  or  false, 
still  be  united  in  one  answer."  consistent  or  inconsistent  ;  and 
Pom.  Rem.  722.  He  adds,  how-  such  license  is  not  to  be  drawn  from 
ever,  that  "  a  different  rule  pre-  the  language  or  spirit  of  the  codes, 
vails  in  a  few  states."  With  due  and  is  not  sanctioned  by  the  weight 
deference  to  the  learned  author,  he  of  authority.  Bliss  PI.  344  ;  Max. 
has  overlooked  the  distinction  be-  PI.  398 ;  Boone  PI.  78 ;  Swan  PL 
tween  contradictory  facts,  and  267. 
logical  inconsistency ;  and  has  '  Ante,  235. 
reached  a  conclusion  that  is  not 


243  '^ti^  ANSWER.  §283 

although  the  avoidance  is  a  tacit  admission  of  what  is  denied ; 
otherwise,  a  defendant  might  be  deprived  of  the  riglit  of  full 
defense.^ 

Tlie  distinction  between  logical  inconsistenc}',  and  incon- 
sistency in  fact,  is  well  stated  by  a  distinguished  judge  and 
author,  in  these  words  :  "  Some  interpretation  of  the  term 
*  consistent  defenses' should  be  adopted  that  is  consistent 
with  the  statute,  and  that  will  secure  the  right  of  full  defense. 
That  right  will  be  secured  if  the  consistency  required  be  one 
of  fact  merely,  and  if  two  defenses  are  held  to  be  inconsistent 
only  when  the  proof  of  one  necessarily  disproves  the  other. 
Two  statements  are  not  inconsistent  when  both  may  be  true. 
When  one  has  paid  a  forged  note,  he  may  deny,  not  the  ex- 
istence of  the  paper,  but  that  it  was  his  promise  ;  and  he 
may  also  aver  its  payment.  But  under  our  system,  the  facts 
should  be  so  set  out  that  both  defenses  may  be  true.  So,  in 
slander,  for  charging  one  with  being  a  thief,  the  defendant 
may  deny  the  words,  and  add  the  actio  non  because  the  plaint- 
iff stole  a  horse.  Proving  the  larceny  does  not  prove  the 
speaking  of  the  words.  The  logic  of  the  justification  might 
be  held  to  admit  the  act  justified,  yet  there  is  no  inconsistency 
in  the  facts  alleged."  2 

263.  Joinder  of  Defenses,  Continued. — Any  denial,  and 
any  statement  of  fact,  that  will  thwart  the  plaintiff's  demand 
is  a  defense  ;  and  as  many  of  these  as  may  in  fact  co-exist, 
may  be  joined,  notwithstanding  the  statement  of  one  may 
involve  a  logical  admission  not  consistent  with  another.  But 
when  two  alleged  grounds  of  defense  are,  in  matter  of  fact, 
so  plainly  contradictory  that  the  verification  of  one  is  the 
falsification  of  the  other,  they  can  not  both  be  true,  and  can  not 
both  be  necessary  to  a  full  defense  ;  they  are  inconsistent  in 
fact,  and  may  not  be  joined. 

In  this  connection  it  may  be  said  that  there  is  some  au- 
thority, and  much  reason,  for  allowing  a  defendant  to  join 
inconsistent  defenses,  when,  from  the  nature  of  the  case,  he 
is  unable  to  determine  before  the  trial,  which  is  his  true  de- 

» Siter  V.  Jewett,  33  CaL  92.  'Per    Bliss,    J.,    in    Nelson   v. 

Brodhack,  44  Mo.  596. 


§  264  ORDERLY  PARTS  OF  PLEADING.  244 

fense.  It  is  consistent  with  the  spirit  of  the  Reformed 
Procedure  that  a  defendant  having  one  or  the  other  of  two 
defenses,  without  the  means  of  determining  before  the  de- 
velopments of  the  trial,  which  is  his  true  defense,  shall  not  be 
compelled,  at  his  peril,  to  rely  upon  one  and  exclude  the 
other.i  In  such  case,  to  give  the  defendant  the  benefit  of  his 
real  defense,  he  should  be  allowed  to  state  the  two  defenses 
in  the  alternative,  stating  also  the  reason  for  so  doing. 
There  is  the  same  reason  for  allowing  such  alternative  state- 
ment of  a  defense,  that  there  is  for  allowing  an  alternative 
statement  of  a  right  of  action.^  And  the  reason  is  accent- 
uated where  the  embarrassment  of  the  defendant  results  from 
some  act  of  the  plaintiff. 

Where  several  defendants  set  up  the  same  defense,  they 
may  join  in  one  answer ;  and  if  all  are  united  in  interest,  a 
verification  by  any  one  of  them  is  sufficient.  If  a  defense 
pleaded  jointly  is  bad  as  to  any  one  of  those  joining  in  it,  it  is 
bad  as  to  all.^  In  an  action  upon  a  joint  liability,  the  answer  of 
one  defendant,  if  in  its  nature  joint,  going  to  the  validity  of 
the  plaintiff's  joint  demand,  will  inure  to  the  benefit  of  all ;  * 
but  not  so,  if  the  legal  effect  of  the  answer  is  to  exonerate 
only  the  party  answering. 

264.  Joinder  of  Defenses — Illustrative  Cases. — The 
defendant,  in  ejectment,  denied  that  plaintiff  ever  had  title, 
and  also  alleged  that  if  he  ever  had  title,  he  had  abandoned 
and  forfeited  it  before  defendant's  entry.  The  trial  court, 
regarding  these  defenses  as  inconsistent,  required  the 
defendant  to  elect  upon  which  he  would  rely.  The 
Supreme  Court  held  that  the  inconsistency  arose  by  implica- 
tion of  law,  and  not  from  any  contradiction  of  facts  averred, 
and  reversed  the  trial  court.^      The  same  court   afterward 

*  Bank  v.  Closson,  29  O.  S.  78.  common  fault  in  pleading  ;  to  wit, 
^  Ante,  208.  the  ase  of  a  denial  and  of  evidential 
2  Black  V.  Richards,  95  Ind.  184  ;    facts    as  separate    defenses.     The 

Morton  v.  Morton,  10  Iowa,  58.  material  matter  was,  that  the  plain- 

*  Sprague,  Adm.  v.  Childs,  16  O.  tiff  did  not  have  title  at  the  com- 
S.  107  ;  Miller  v.  Longacre,  26  O.  mencement  of  the  action.  Prior 
S.  291.  abandonment  and  forfeiture  would, 

*  Bell  V.  Brown,  22  Cal.  671.  The  as  evidence,  sustain  a  denial  of  title. 
answer  in  this    case  illustrates  a  The  answer  should  have  been  a  de- 


245  THE  ANSWER.  g  265 

held  that  a  defendant  in  ejectment  may  deny  the  title  of  the 
plaintiff,  and  also  plead  the  statute  of  limitations.^  In  a 
similar  case,  tlie  defendant  denied  that  he  was  in  jjossession, 
and  also  alleged  that  he  was  in  possession  as  the  agent  and 
servant  of  another,  who  owned  the  property.  These  de- 
fenses were  clearly  inconsistent.  The  defense  of  new  matter 
did  not,  by  mere  implication,  admit  the  defendant's  posses- 
sion ;  it  positively  averred  his  possession,  and  sought  to  justify 
it.  The  denial  of  possession,  and  the  assertion  of  rightful  pos- 
session, is  not  a  mere  logical  inconsistency,  but  a  direct 
contradiction  of  facts.  Both  defenses  can  not  be  true  in 
point  of  fact.  But  no  objection  was  made  in  the  trial  coui-t, 
on  the  ground  of  inconsistency ;  and  the  plaintiff  having 
offered  no  evidence  on  the  trial  to  show  the  defendant's  pos- 
session, a  judgment  of  nonsuit  was  entered,  on  motion  of  the 
defendant.  The  Supreme  Court  held  that  the  nonsuit  was 
proper,  and  said :  "  Though  two  defenses,  separately 
pleaded,  may  be  inconsistent,  the  plaintiff  can  not  disregard 
them,  or  either  of  them,  on  the  trial.  A  separate  defense 
should  not  contain  matters  in  themselves  repugnant  or  in- 
consistent ;  but  a  defense,  regarded  as  an  entirety,  is  not  to 
be  disregarded  merely  because  it  is  inconsistent  with  some 
other  defense  pleaded."  ^ 

265.  Joinder  of  Defenses — Illustrative  Cases,  Con- 
tinued.— In  an  action  on  a  promissory  note,  the  defendant 
may  join  a  denial  of  the  making  of  the  note,  with  a  plea  of 
infancy  ;  ^  or  he  may  join  a  defense  of  payment,  and  a  plea  of 
the  statute  of  limitations  ;  ^  or  a  denial  of  the  execution  of  the 
note,  and  want  of  consideration  therefor.^  In  such  cases,  if 
one  defense  be  true,  the  other  is,  of  course,  immaterial  and 

nialonly;  and  the  forfeiture,  being  election.it  might  have  been  siricfcen 

an  evidential  fact,  should  not  have  out,  on  motion  for  that  purpose. 

been  pleaded.     The  defense  of  new        '  Willson  v.  Cleaveland,  30  Cal. 

matter,  containing  only  evidential  192. 

matter  admissible  under  a  denial,        '  Buhne  v.  Corbett,  43  Cal.  264. 

was,  in  legal  effect,  the  equivalent        "  Mott  v.  Burnett,  2  E.  D.  Smith, 

of  a  denial ;  and  while  this  defense  50. 

was  not  inconsistent  with  the  de-        *  Conway  v.  Wharton,  13  Minn. 

nial,  and  did  not  present  a  case  for  158. 

»  Pavey  v.  Pavey,  30  O.  S.  600. 


t;  266  ORDERLY  PARTS  OF  PLEADING.  246 

Tiiiiiecessary ;  but  the  defenses  are  not  inconsistent;  both 
may  be  true,  and  both  are  necessary  to  a  full  defense.  In  a 
siiniliir  action,  the  defendant  for  a  first  defense  denied  tlie 
making  of  the  note,  and  for  a  second  defense  he  alleged  that 
if  the  signature  to  the  note  was  genuine,  it  was  obtained  by 
a  cunningly  devised  scheme  or  trick.  The  trial  court  held 
these  defenses  to  be  inconsistent,  and  required  the  defendant 
to  elect  upon  which  he  would  rely.  The  Supreme  Court, 
reversing  the  trial  court,  said  :  "  The  code  contains  no  limi- 
tation upon  the  provision  that  the  defendant  may  set  forth  as 
many  grounds  of  defense  as  he  may  have,  except  the  implied 
limitation  contained  in  the  requirement  that  pleadings  shall 
be  verified  by  oath.  There  is  no  provision  requiring  the 
several  grounds  of  defense  to  be  technically  consistent  with 
each  other,  or  requiring  an  express  admission  of  the  truth  of 
averments  sought  to  be  avoided  by  new  matter.  It  is  merely 
required  that  the  answer  shall  be  verified  by  oath.  When 
two  alleged  grounds  of  defense  plainly  contradict  each 
other,  they  are  not  susceptible  of  verification,  because  it  is 
impossible  for  both  to  be  true.  The  verification  of  one  is  the 
falsification  of  the  other.  In  such  case,  the  answer,  though 
sworn  to,  is  not  '  verified,'  and  should,  on  motion,  be  stricken 
from  the  files,  or  the  defendant  be  put  to  his  election.  Was 
there  any  such  contradiction  or  irreconcilable  repugnancy 
between  tlie  two  defenses  set  up  in  this  answer  ?  We 
luink  not.  Taken  together,  the  two  defenses  amount  to 
this:  That  the  defendant  is  ignorant  whether  he  signed 
the  note  or  not ;  he  does  not  believe  he  signed  it,  and 
therefore  denies  it;  and  says  that  if  he  did  sign  it,  his 
signature  was  obtained  by  fraud,  and  without  considera- 
tion." i 

266.  Joinder  of  Defenses — Illustrative  Cases,  Con- 
tinued.— In  an  action  for  slander  in  charging  perjur}^  the 

'  Bank  v.  Coulson,  29  O.  S.  78.  defendant  had  one  of  two  defenses. 
The  defenses  in  this  case  were  and  had  not  the  means  of  knowing, 
clearly  inconsistent  ;  both  could  otherwise  than  from  the  develop- 
not  be  true.  The  rational  ground  ments  to  be  made  upon  the  trial, 
for  the  joinder,  as  intimated  in  the  which  of  the  two,  in  fact  or  in  law, 
opinion  of  Welch,  C.  J.,  is.  that  the  was  his  true  defense. 


247  THE  ANSWER.  §266 

defendant  may  both  deny  and  justify ;  for  it  may  be  true 
that  the  phiintiff  committed  perjury,  and  that  the  defendant 
did  not  speak  the  words  complained  of;  and  both  the  denial 
and  the  justification  are  necessary  to  a  full  defense.^  In  an 
action  for  slander  in  charging  larceny,  the  defendant  in  one 
defense  denied  the  speaking,  and  in  another  he  alleged  that 
the  words  spoken  referred  to  a  trespass  committed  by  the 
plain tiif,  and  not  to  a  larceny.  Here  the  answer  of  new 
matter  expressly  admitted  the  speaking,  and  was  inconsistent 
with  the  denial.  But  the  court  sustained  the  answer,  and 
refused  to  require  the  defendant  to  elect,  on  the  ground  that 
the  facts  alleged  as  new  matter  would,  if  proved,  sustain  the 
defense  under  the  general  traverse.^ 

In  an  action  on  a  promissory  note,  a  defendant  who  is 
surety  may  join  defenses  of  usury,  of  extension  of  time,  and 
of  payment.^  But  a  denial  of  the  execution  of  an  instru- 
ment, and  an  allegation  that  it  was  executed  under  duress, 
are  inconsistent.*  So  are  a  denial  and  a  tender ;  ^  and  a 
denial  of  the  taking  of  goods,  and  justification  under  process.® 

Where  inconsistent  defenses  are  improperly  joined,  the 
remedy  is  by  motion  to  require  the  defendant  to  elect  upon 
which  he  will  rely. 

1  Weston  V.  Luraley,  33  Ind.  486;  ^  ghed  v.  Augustine,  14  Kan.  283. 
Butler  V.  Wentworth,  9  How.  Pr.        *  Wright  v.  Bacheller,   16  Kan. 

282.  259. 

*  HoUenbeck  v.  Clow,  9  How.  Pr.        ^  Livingston  v.  Harrison,  2  E.  D. 

289.    The  ruling  in  this  case  is  of  Smith,  197. 
doubtful  authority.  •Derby  v.  Gallup,  5  Minn.  119. 


CHAPTER  XVni. 
THE  REPLY. 

267.  Nature  of  Reply,  and  When  Necessary. — The  chief 
object  of  pleadings  subsequent  to  the  complaint  is,  to  present 
an  issue.  In  the  common-law  procedure,  the  alternate  plead- 
ings were  continued  until  an  issue  was  evolved.  In  the  new 
procedure,  the  only  responsive  pleading  from  the  plaintiff  is 
called  a  reply  ;  and  this,  when  made  necessary  by  the  nature 
of  the  answer,  terminates  the  pleadings.  If  the  answer  con- 
tain only  a  denial,  it  will  present  an  issue,  and  no  reply  is 
necessary.  When  the  answer  contains  a  defense  of  new 
matter,  such  defense  does  not  make  an  issue,  but  diverts  the 
contention  from  the  facts  in  the  complaint,  which  are  thus 
confessed  and  avoided,  to  the  new  matter  so  pleaded  in  the 
answer,  and  calls  for  a  reply. 

The  reply,  like  the  answer,  may  be  a  denial,  general  or 
special,  of  all  or  any  part  of  the  new  matter  in  the  answer; 
or  it  may  itself  contain  new  matter  in  confession  and  avoid- 
ance ;  and  it  may  contain  both  denials  and  new  matter, 
separately  stated. 

The  codes  of  the  several  states  do  not  agree  in  regard  to 
the  necessity  for  a  reply.  In  a  few  states,  no  reply  is  re- 
quired or  permitted  ;  in  some,  none  is  required  except  to  a 
counter-claim  or  set-off ;  and  in  some,  a  reply  is  required  only 
when  the  defense  of  new  matter  is  to  be  met  by  new  matter 
in  avoidance ;  while  in  others,  all  new  matter  in  the  answer, 
whether  by  way  of  defense  or  by  way  of  cross-demand,  must 
be  replied  to,  either  by  denial  or  by  new  matter  in  avoidance. 
And  an  answer  of  new  matter  to  a  cross-complaint  may  be 
met  by  a  reply  from  the  defendant. 

Every  material  allegation  of  the  complaint  not  contro- 
verted by  the  answer,  and  every  material  allegation  of  new 

248 


249  THE  REPLY.  §  268 

matter  in  the  answer  not  controverted  by  the  reply,  in  states 
where  a  reply  is  necessary,  is,  as  matter  of  pleading,  and  for 
the  purposes  of  the  action,  to  be  taken  as  true.  But  new 
matter  in  the  reply  is  to  be  deemed  controverted,  as  by  de- 
nial or  avoidance,  as  the  case  may  require.  This  is  a  logical 
necessity,  arising  from  the  arbitrary  termination  of  the 
pleadings ;  for  otherwise,  a  reply  of  new  matter  in  avoidance 
would  terminate  the  pleadings  without  an  issue. 

268.  When  Reply  Not  Necessary. — As  stated  in  the  last 
preceding  section,  a  defense  of  denial  does  not  require  a 
reply,  because  it  makes  an  issue  upon  the  matters  denied, 
and  therefore  terminates  the  pleadings  as  to  such  matters ; 
while  a  defense  of  new  matter  must  be  met  by  a  reply,  or  its 
material  facts  will  be  taken  as  admitted.  This  rule  is  plain, 
but  its  application  is  not  always  free  from  difficulty. 

Where  a  defense  is  stated  in  the  form  of  new  matter,  but 
comprises  only  evidential  facts  that  are,  in  efifect,  only  a 
traverse  of  the  complaint,  and  that  might  be  proved  under  a 
denial,  it  is  not  a  defense  of  new  matter,  and  does  not  require 
a  reply  ;  ^  and  the  facts  so  pleaded  are  not  admitted  by  failure 
to  reply.  Where  an  answer  contains  an  admission  of  a  sup- 
posed allegation  of  the  complaint  not  actually  contained 
therein,  such  admission  is  not  an  allegation  of  new  matter, 
and  needs  no  reply .^  In  an  action  for  goods  sold  and 
delivered,  the  defendant,  in  addition  to  a  general  denial, 
answered  that  the  goods  were  sold  to  his  wife,  without  his 
knowledge  or  consent,  when  she  was  wrongfully  living  apart 
from  him.  This  was  held  to  be  an  argumentative  general 
denial,  as  all  the  facts  alleged  were  evidential,  and  amounted 
only  to  a  denial  that  the  goods  were  sold  to  the  defendant ;  ^ 
and  it  was  held  that  the  sustaining  of  a  demurrer  to  the 
special  defense  was  not  error,  because,  as  the  facts  therein 
alleged  could  all  be  proved  under  the  defense  of  denial,  the 

1  Conyv.  Campbell,  25  O.  S.  134  ;  Porter,  19  Kan.  131  ;  Thompson  v. 

Simmons  v.  Green,  35   O.  S.  104  ;  Thompson,  52  Cal.  154  ;   Miller  v. 

Sylvis  V.    Sylvis,     11    Colo.    319 ;  Brigham,  50  Cal.  615. 

Riddle  v.  Parke,  12  Ind.  89 ;  State  '  Hoisington    v.    Armstrong,   23 

V.  Williams,  48  Mo.  210  ;  Ferris  v.  Kan.  110. 

Johnson,  27  Ind.  247  ;   Netcott  v.  « Day  v.  Wamsley,  33  Ind.  145. 


-<. 


§  269        ORDERLY  PARTS  OF  PLEADING.  250 

defendant  could  not  be  prejudiced  by  the  ruling  on  the  de- 
murrer.^ Where  the  complaint  in  replevin  alleged  plaintiff's 
ownership  and  right  to  possession,  and  wrongful  detention 
by  the  defendant,  and  the  answer  denied  the  detention,  and 
alleged  property  in  a  stranger,  it  was  held  that  the  allega- 
tion of  property  in  a  stranger  was  an  argumentative  denial 
of  property  in  the  plaintiff,  and  needed  no  reply .^  Property 
in  a  stranger  was  an  evidential  fact  that  would,  as  evidence, 
sustain  a  denial  of  property  in  plaintiff ;  and  such  denial 
would  be  the  proper  plea. 

It  may  be  stated  as  a  general  rule,  that  facts  alleged  in  an 
answer,  that  might  be  proved  under  a  denial  of  the  aver- 
ments of  the  complaint,  and  that  are  operative  only  because 
inconsistent  with  such  averments,  can  amount  to  no  more 
than  a  specific  denial,  and  do  not  require  a  reply  ;  but  facts 
alleged  in  the  answer,  not  inconsistent  with  those  of  the 
complaint,  but  constituting  a  defense  or  counter-claim,  and 
that  could  not  be  proved  under  a  specific  denial,  are  new 
matter  and  require  a  reply .^ 

269.  When  Reply  Not  Necessary,  Continued. — A  very 
common  fault  in  pleading  is  the  combination  of  the  general 
denial  and  a  statement  of  facts  equivalent  thereto,  either  in 
the  same  defense,  or  in  separate  defenses.  Where  the  plaint- 
iff charged  the  defendant  with  doing  an  unlawful  act  to  the 
injury  of  the  plaintiff,  the  answer  denied  that  the  defendant 
did  the  act  complained  of,  and  alleged  that  a  third  person, 
naming  him,  did  it.  This  Avas  held  to  be  a  mere  denial,  not 
requiring  a  reply.*  The  allegation  that  another  did  the  act 
complained  of  did  not  require  a  reply  for  several  reasons. 
First,  because  the  fact  is  purely  evidential,  and  should  not 
be  pleaded ;  secondly,  when  pleaded  it  is  argumentative,  and 
as  an  argument  it  amounts  only  to  a  denial,  for,  to  say  that 
another  did  it,  is  only  to  say,  by  inference,  that  the  plaintiff 
did  not  do  it ;  and  thirdly,  it  is  immaterial.     If  the  defendant 

1  Cf.  Claypool  v.  Jaqua,  135  Ind.  ^  Mauldin  v.  Ball,  5  Mont.  96. 

499 ;  Barnard  v.  Sherley,  135  Ind.  *  Hoffman  v.   Gordon,  15  O.  S. 

547.  211. 

•  Riddle  v.  Parke,  12  Ind.  89. 


251  THE  REPLY.  §270 

did  not  do  the  act,  it  is  not  material,  as  matter  of  pleading, 
to  show  who  else  did  it.  In  an  action  to  recover  damaofes 
for  the  breach  of  a  contract,  averments  in  the  answer  setting 
up  a  different  contract  are  immaterial,  except  as  they  operate 
to  deny  the  making  of  the  one  sued  on ;  they  are  not  new 
matter,  and  they  require  no  reply.^ 

Where  a  negative  averment  in  the  complaint  is  properly 
traversed  by  an  affirmative  allegation  in  the  answer,  such 
affirmative  allegation,  in  form  a  statement  of  new  matter, 
simply  questions  the  statement  of  the  complaint,  and  rests 
the  contention  upon  it ;  it  does  not  confess  and  avoid,  and 
is  not  new  matter  requiring  a  reply.  Where  the  complaint 
alleged  that  a  certain  assignment  of  a  note  and  mortgage 
was  without  consideration,  and  for  the  purpose  of  collection 
only,  and  the  answer  alleged  that  it  was  upon  a  sale,  and 
for  a  valuable  consideration,  it  was  held  that  the  allegation 
in  the  answer  was  not  new  matter  requiring  a  reply .^  In  an 
action  on  an  attachment  bond,  the  comjjlaint  alleged,  inter  alia, 
that  the  attachment  had  been  abated  by  a  judgment  in  the 
original  action.  The  answer  asserted  that  the  original  suit 
was  still  pending,  by  motion  in  arrest  of  judgment  and  for  a 
new  trial.  It  was  held  that  this  was,  in  effect,  a  mere  denial 
of  an  allegation  which  the  plaintiff  must  prove  to  make  out 
his  case  ;  that  it  did  not  confess  and  avoid,  and  was  not  new 
matter  requiring  a  reply .^ 

270.  Counter-claim  and  Set-off  in  Reply. — As  to 
whether  a  counter-claim  or  set-off  in  the  answer  may  be  met 

^  Simmons  v.  Green,  35  O.  S.  104.  under  the   general    denial.      This 

Mr.  Pomeroy,  speaking  of  the  fault  mode  of  pleading  is  faulty  in  the 

of  superadding  to  a  general  denial  extreme  :  it  has  not  a  single  reason 

a  special  defense  equivalent  there-  in  its  favor,  not  an  excuse  for  its 

to,  says  :  "  It  would  seem  as  though  existence;  it  overloads  the  record 

the  pleader,  after  he  had  written  with  superfluous  matter,  and  pro- 

the  brief  general  denial,  could  not  duces  confusion  and  uncertainty." 

be  satisfied  with  its  efficacy,  and  Pom.  Rem.  630. 

considered  it  necessary  to  add  in  ^  Engle  v.  Bugbee,  40  Minn.  492  ; 

separate  divisions  of  the  answer  a  Ferguson  v.  Tutt,  8  Kan.  370. 

further  statement  of  the  very  facts  ^  State  v.  Williams,  48  Mo.  210, 

which  would  constitute  the  defense,  212. 
and  which    could    all  be    proved 


§271  ORDERLY  PARTS  OF  PLEADING.  252 

by  a  counter-claim  or  set-off  in  the  reply,  the  authorities  are 
not  agreed.  Perhaps  the  general  rule  may  be  said  to  be, 
that  this  may  be  done,  provided  the  right  set  up  in  the  reply 
is  not  a  departure.  This  is  on  the  ground  that  as  to  the 
cross-demand  in  the  answer,  the  plaintiff  is  a  defendant,  and 
has  the  rights  of  a  defendant,  including  the  right  of  counter- 
claim and  set-off.i  And  on  the  like  ground,  to  wit,  that  the 
assertion  of  the  cross-demand  is  a  cross-action,  it  would  seem, 
upon  principle,  that  a  set-off  in  reply  may  be  one  existing  at 
the  time  defendant  files  liis  cross-demand,  though  not  exist- 
ing at  the  commencement  of  the  action.  But  plaintiff  can 
not,  in  reply  to  a  set-off,  assert  a  demand  that  he  might  have 
included  in  his  complaint ;  ^  and  it  has  been  held  that  a 
cross-demand  in  the  reply  is  available  only  as  a  defense,  and 
that  there  can  be  no  recovery  for  any  excess  thereof.^ 

It  has  been  held  that  one  having  a  note  and  an  account 
against  another  may  sue  upon  the  note,  and  in  a  reply  plead 
the  account  as  a  set-off  against  a  set-off  pleaded  by  the 
defendant ;  ^  and  in  an  action  on  a  joint  and  seyeral  contract, 
the  plaintiff  has  been  allowed,  in  reply  to  an  individual 
counter-claim  of  one  defendant,  to  set  up  a  claim  against 
such  defendant  as  a  set-off.^  This  was  on  the  ground  that 
the  reply  did  not  state  a  new  cause  of  action,  but  simply  a 
bar  to  the  counter-claim. 

271.  Reply  to  Defense  of  Fraud. — When  fraud  is  relied 
upon  as  a  defense,  it  is  new  matter,  to  be  specially  pleaded, 
and  must  be  met  by  reply.  Generally,  no  reply  but  denial 
can  be  asserted  against  a  defense  of  fraud.  In  a  few  in- 
stances, however,  a  charge  of  fraud  may  be  met  by  confession 
and  avoidance. 

1  Peden  v.   MaO,   118  Ind.  556 ;  Contra,  Hill  v.   Roberts,   86  Ala. 

Cox  V.  Jordan,  86  111.  560  ;  Galligan  523  ;  Cohn  v.  Hiisson,  66  How.  Pr. 

V.  Fannan,  91  Mass.    (9  Allen)  192  ;  150. 

Mortland  v.   Holton,  44  Mo.    58  ;        '  Dawson  v.  Dillon,  26  Mo.  395. 
Miller  v.  Losee,  9  How,  Pr.  356  ;        ^  Cox  v.  Jordan,  86  111.  560. 
House  V.  McKinney,  54  Ind.  MO  ;        *  Blount  v.    Rick,  107   Ind.  238. 

Turner  v.   Simpson,   12  Ind.   413  ;  But  see  Dawson  v.  Dillon,  supra. 
Reilly    v.    Bucker,    16    Ind.    803  ;        *  Mortland  v.  Holton,  44  Mo.  58. 
Curran   v.    Curran.    40   Ind.    473. 


5J53  THE  REPLY.  §272 

An  indorsee  of  negotiable  paper  is,  under  certain  condi- 
tions, protected  against  its  original  infirmities,  including 
fraud  in  its  procurement.  To  be  so  protected,  he  must  be  a 
"•  bona  fide  holder  for  value  ;  "  that  is,  he  must  have  paid  a 
consideration  for  the  security,  and  must  have  taken  the  legal 
title  thereto,  before  maturity,  without  notice  of  its  infirmity. 
It  has  been  suggested,  that  in  pleading  such  fraud  against 
an  indorsee  who  sues  on  the  instrument,  it  may  be  sufficient 
to  allege  only  the  original  infirmity ;  ^  that  such  allegation 
of  original  invalidity  destroys  the  title  of  the  original 
holder,  and,  prima  facie,  the  title  of  the  indorsee,  which' 
reposes  on  that  foundation  ;  and  that  if  the  indorsee 
obtained  the  paper  for  value,  and  without  notice,  it  is  for  him 
to  allege  these  facts,  which  give  him  a  new  title  notwith- 
standing the  alleged  infirmity  of  the  instrument.  These 
new  facts,  the  one  affirmative  and  the  other  negative,  when 
alleged  in  the  reply,  would  be  new  matter  in  avoidance ;  and 
if  not  connected  with  a  denial,  such  reply  would  put  the 
07ms  probandi  upon  the  plaintiff.^  But  this  suggestion  is 
based  upon  a  rule  of  evidence,  and  is  at  variance  with  the 
principles  of  pleading,  which  would  seem  to  require  that  an 
averment  of  fraud  should  be  coupled  with  such  other  facts  as 
are  legally  requisite  to  make  the  defense  available  against 
the  plaintiff.  And  such  is  believed  to  be  the  general,  if  not 
the  uniform,  practice.^ 

272.  Reply  to  Defense  of  Fraud,  Continued. — So,  also 
a  defendant  may  confess  and  avoid  an  allegation  of  fraud. 
Where  a  sale  of  goods  is  induced  by  the  fraud  of  the  pur- 
chaser, and  there  is  actual  and  unconditional  delivery,  with 

'  Byles  on   Bills,   120-124  ;   Bliss  exception  stated  in  the  text  is  based 

PI.  395.  upon  two  reasons ;  (1)  there  is  a 

'  2  Gr.  Ev.  172  ;  1  Dan.  Neg.  Instr.  presumption  that  the  guilty  payee 

166,769a;  Sperry  v.  Spaulding,  45  transferred  it  in  order  that  he  might 

Cal.  544.     The  general  rule  is,  that  realize  on  it,  in  the  name  of  a  third 

the  transferee  of  negotiable  paper  person ;     and    (2)     the    transferee 

is  presumed  to  have  taken  it  for  knows  how  it  came  to  his  hands, 

value,  before  its  dishonor,  and  in  and  it  is  much  easier  for  him  than 

the  regular  course  of  business  ;  and  for  the  defendant  to  make  proof  of 

the  burden  is  upon  the  maker  to  it. 
overcome  this  presumption.     The        •  Lane  v.  Krekle,  32  Iowa,  399. 


§  273        ORDERLY  PARTS  OF  PLEADING.  354. 

intent  to  pass  the  title,  a  subsequent  bona  fide  purchaser  for 
value  will  take  the  goods  freed  from  the  right  of  the  original 
vendor  to  reclaim  the  goods.^  In  an  action  by  the  original 
vendor  to  reclaim  the  goods  from  such  innocent  purchaser, 
on  the  ground  of  fraud  in  the  purchase  from  him,  tlie  defend- 
ant ma}^  in  avoidance  of  the  allegation  of  fraud,  allege  his 
purchase  from  the  fraudulent  vendee  in  possession,  for  value, 
and  without  notice. 

It  is  common  j)ractice,  in  alleging  fraud  in  such  cases,  to 
add  the  averments  of  notice  and  vrant  of  consideration ;  but 
upon  principle  it  would  seem  that  such  averments  in  the  plead- 
ing impeaching  the  instrument  in  the  one  case,  and  the  sale 
in  the  other,  can  have  no  office  but  to  anticipate  the  defense, 
and  that  the  facts  of  consideration  and  want  of  notice,  being 
in  the  nature  of  estoppel,  should  be  pleaded  in  response  to 
the  allegation  of  fraud  which  they  are  to  meet  and  avoid. 
If  it  is  proper  in  such  cases  to  combine  with  the  allegation 
<of  fraud,  the  affirmative  allegation  of  notice,  and  the  nega- 
i;ive  allegation  of  want  of  consideration,  then  a  traverse  of 
these  allegations  must  be  proper,  and  must  be  the  only  way  to 
present  an  issue.  But  in  such  case  there  would  be  no  affirma- 
tive assertion  of  consideration,  and  no  averment  of  innocence ; 
and  yet  these  are  the  facts  which  protect  the  purchaser,  and 
which  he  is  bound  to  prove  for  his  protection.  That  which 
a  party  is  bound  to  maintain  by  proof,  he  must  first  assert  by 
pleading.'-^ 

273.  Departure  in  the  Reply. — Departure  in  pleading 
is  the  dereliction  of  an  antecedent  ground  of  complaint,  or  of 
defense,  for  another  that  does  not  fortify  the  former.^  This 
is  forbidden,  because,  if  the  parties  were  allowed,  at  pleasure, 
to  abandon  the  ground  of  complaint  or  defense  first  asserted, 
and  to  resort  to  another,  the  pleadings  would  be  prolonged, 
the  formation  of  an  issue  delaj^ed,  and  the  foundation  of  the 
action,  or  of  the  defense,  might  be  entirely  changed.  At 
common   law,  departure   may  take   place  in   any   pleading 

1  Benj.  on  Sales,  433,  and  notes  ;        '  Dan.  Neg.  Instr.  166,    769a  ;  3 
Devoe  V.  Brandt,  53  N.  Y.  462.  Gr.  Ev.  172. 

»  Ry.  Co.  V.  Herr,  135  Ind.  591. 


255  THE  REPLY.  §273 

subsequent  to  the  plea  ;  ^  in  code  pleading,  it  can  occur  only 
in  the  reply. 

The  introduction  of  a  new  cause  of  action  in  the  reply,  as 
a  ground  of  recovery,  is  a  departure.  It  is  not  the  province 
of  a  reply  to  introduce  new  causes  of  action ;  this  can  be 
done  onl}''  by  amendment  of  the  complaint.^  Where,  in 
answer  to  a  complaint  for  an  accounting,  and  for  judgment 
for  the  amount  found  due  the  plaintiff,  the  defendant  alleges^ 
that  the  amount  due  the  plaintiff  has  been  ascertained  by  an 
award,  and  the  plaintiff,  in  his  reply,  admits  the  submission 
and  award,  and  asks  judgment  for  the  amount  of  the  award, 
it  is  not  a  departure.  The  judgment  in  such  case  will  rest 
upon  the  complaint  and  the  answer,  the  reply  being  wholly 
unnecessary.^  In  an  action  against  a  corporation  for  damages 
for  refusing  to  ti'ansfer  stock  on  its  books,  the  complaint 
alleging  a  general  ownership,  by  plaintiff,  a  reply  alleging  a 
special  ownership  as  pledgee  was  held  not  to  be  a  departure.* 
In  an  action  against  a  carrier  for  the  value  of  a  mule  killed 
in  transportation,  the  answer  set  up  a  counter-claim  for  the 
freight  agreed  on.  The  plaintiff  replied,  alleging  injuries  to 
other  mules  shipped  at  the  same  time.  A  demurrer  to  the 
reply  was  sustained  because  it  was  a  departure,  and  because 
the  plaintiff,  having  but  a  single  right  of  action,  could  not 
divide  it.^  In  an  action  by  the  assignee  of  notes,  the  answer 
alleged  fraud  of  the  payee  in  obtaining  them,  and  want  of 
consideration.  The  plaintiff  replied,  that  after  the  assign- 
ment to  him,  and  before  maturity,  the  defendant  obtained 
from  him  an  extension  of  time,  on  a  promise  to  pay  them. 
This  was  held  to  be  an  avoidance,  and  not  a  departure.^ 

A  new  assignment''  is  not  a  departure;  it  is  simply  a 
restatement  of  the  plaintiff's  cause  of  action,  describing  more- 
particularly  what  had  before  been  described  too  generally,  in 
order  to  remove  the  defendant's  misconception. 

Departure  is  a  fault  in  matter  of  substance,  and  the  remedy 

'  Ante,  119.  »  Mount  v.  Ry.  Co.,  2  Ky.  Law 

«  Durbin  v.  Fisk,  16  O.  S.  533.  Rep.  221. 

»  Benson  v.  Stein,  34  O.  S.  294.  «  Brown  v.  Bank,  11.5  Ind.  573 ; 

*  Bank  v.  Richards,  74  Mo.  77.  House  v.  McKinney,  54  Ind.  240, 

'  Ante.  76. 


§  274        ORDERLY  PARTS  OF  PLEADING.  256 

is  by  demurrer  for  want  of  sufficient  facts.^  But  if  the 
parties  go  to  trial  without  objection,  judgment  will  not  be 
arrested  on  account  of  a  departure/'' 

274.  form  of  Reply. — The  reply,  as  already  stated,  may 
be  a  denial,  or  a  confession  and  avoidance,  or  both.  If  it 
contains  both,  or  if  it  contains  several  denials  of  distinct  and 
separate  defenses,  or  if  it  contains  several  distinct  and  inde- 
pendent matters  in  avoidance,  they  should  be  separately  stated 
therein  ;  and  each  separate  statement  in  the  reply  should 
designate  clearly  the  part  or  parts  of  the  answer  to  which 
it  is  to  be  applied. 

An  averment  in  a  reply  that  the  plaintiff  can  not  admit  or 
deny  the  allegations  of  the  answer,  but  demands  proof  of  the 
same,  is  not  a  traverse  of  the  facts  so  alleged,  and  the  de- 
fendant in  such  case  will  not,  because  of  such  reply,  be  called 
upon  to  sustain  his  averments  by  proof .^ 

A  reply  setting  up  only  evidential  facts  inconsistent  with 
the  new  matter  to  which  it  is  addressed,  may,  if  not  objected 
to  by  motion,  be  treated  as  a  denial.*  A  reply  to  the  original 
answer  is  good  as  a  reply  to  an  amended  answer,  where  the 
amendment  only  adds  matter  not  requiring  a  reply ;  ^  and  a 
leply  to  an  answer  will  stand  as  a  reply  to  the  answer  to  an 
amended  complaint,  if,  without  objection,  the  parties  so  treat 
it.^     And  if  a  cause  be  tried  as  though  a  reply  by  way  of 

'  Haas  V.   Shaw,   91    Ind.    384  ;  amenable  to  a  motion  to  strike  out. 

Bank  v.  Hendrickson,  40  N.  J,  L.  But  as  the  new  procedure  looks  to 

52 ;  Newcomb  v.  Weber,  1  C.  S.  C.  substance    rather    than    to    form, 

Rep.  12,  14  ;  McAroy  v.  Wright,  25  there  is  a  tendency,  in  some  juris- 

Ind.  22  ;  Bearss  v.  Montgomery,  46  dictions,  to  sustain  such  pleading, 

Ind.  544.  asagainst  a  demurrer,  provided  the 

'^  Jordan  v.   James,  5  Ohio,  88  ;  evidential  facts  stated  are  in  effect 

New  V.   Wamback,   42    Ind.  456;  equivalent  to  a  denial.     Pom.  Rem. 

Philibert  v.  Burch,  4  Mo.  App.  470  ;  624-632,    and    cases    cited.      Such 

Mortland  v.  Holton,  44  Mo.  58.  practice  is  illogical  in  theory,  and 

*  Building  Ass'nv.  Clark,  43  O.  S.  most  v'cious  in  tendency,  and 
427.  ought   everywhere  to  be  discour- 

*  Meredith  v.  Lackey,  14  Ind.  529.  aged. 

A  defense  or  a  reply  containing  '  Leslie  v.  Leslie,  11  Abb.  Pr.  N. 

only    evidential    facts    is    a    clear  S.  311. 

violation  of  the  plainest  and  sound-  '  Vaughan  v.  Howe,  20  Wis.  497. 
est  principles  of  pleading,  and  is 


257  THE  REPLY.  §274 

traverse  had  been  filed,  when  in  fact  none  had  been  filed, 
the  defendant  will  be  taken  to  have  waived  the  omission ;  ^ 
or  it  will  be  treated  as  having  been  filed ;  ^  or  the  court  may, 
after  verdict,  allow  it  to  be  filed  nune  pro  tunc.^ 

'  Henslee  v.   Cannefax,  49  Mo.        *  McAllister  v.  Howell,  42  Ind. 
295;  Meader  v.   Malcolm,   78  Mo.        15. 

550  ;  Hopkins  v.  Cothran,  17  Kan.        ^  Foley  v.  Alkire,  53  Mo.  317. 
173 ;  Muldoon  v.  BlackweU,  84  li 
Y.  646. 

17 


SUBDIVISION  II. 
THE  IRREGULAR  PARTS  OF  PLEADING. 

275.  Scope  and   Purpose  of  TJiis  Division. — When  a 

question  of  fact  is  to  be  presented  to  a  court  for  trial,  it  is  of 
the  first  importance  that  the  issue  be  real  and  material,  and 
that  it  be  so  definite  and  certain  that  the  trial  may  proceed 
with  intelligence  and  dispatch,  and  that  the  decision  shall  be 
conclusive  of  the  controversy.  To  these  ends,  the  pleadings 
of  fact  should,  as  they  proceed,  be  subjected  to  such  tests 
and  supervision  as  will  avoid  the  production  of  an  uncertain 
or  immaterial  issue.  Such  supervision  is  provided  by  means 
of  motions,  demurrers,  and  amendments.  If  a  pleading  of 
fact  be  defective  in  f orm^  the  adversary  party  may,  by  motion, 
require  it  to  be  reformed ;  if  defective  in  substance,  he  may 
object  to  it  by  demurrer  ;  and  each  party  may,  within  certain 
restrictions,  cure  defects  or  mistakes  in  his  own  pleading  by 
amendment  thereof.  These  means  for  perfecting  pleadings 
of  fact,  since  they  may  or  may  not  be  resorted  to  in  the  pro- 
duction of  an  issue,  may  properly  be  termed  the  irregular 
parts  of  pleading} 

276.  Formal  Requirements. — A  distinguishing  merit  of 
the  reformed  procedure  is,  that  it  subordinates  requirements 
of  form  to  requirements  of  substance.  But  there  are  two, 
and  widely  different,  aspects  of  formal  requirements  in  plead- 
ing.    In  one  sense,  the  requii'ement  of  foi-in  relates  to  "  tliosc; 

*  Speaking  strictly,  pleadinj^  con-  the  developmpnt  of  a  material  issue, 

sists  only  in   alleging  or  denying  and  since  their  use,  when  employed, 

matters  of  fact  ;  therefore,  in  phil-  is   inseparable  from  the  pleadings 

ological  strictness,  these  collateral  proper,  their  classification  as  "ir- 

expedients — these  means  for  per-  regular  parts  of  pleading "  affords 

fecting  pleadings  of  fact — should  such  convenience  and  perspicuity 

not  be  called  pleadings.     But  inas-  of  treatment  as  to  justify  this  ap- 

much  as  they  tend  to  the  same  end,  parent  laxity.     See  ante,  167. 
258 


259  MOTIONS.  §  278 

technical  or  artificial  modes  of  introducing  and  detailing  the 
subject-matter  pleaded,  which  have  been  established  by 
usage."  This  is  the  sense  in  which  the  requirement  obtained 
in  the  common-law  procedure,  where  it  grew  into  an  arbitrary 
adherence  to  forms  and  precedents  so  refined  and  so  verbose 
as  very  often  to  obscure,  rather  than  to  disclose,  the  real 
claims  and  defenses  of  the  parties.  In  another  sense,  form  is 
regarded  as  a  security  for  substance,  and  not  as  a  mere  form- 
iilar}-.  In  this  sense,  matter  of  form  becomes  a  means 
to  be  used  for  promoting  the  administration  of  justice, 
rather  than  a  dominant  authority  to  be  conformed  to. 
It  is  mainly  in  this  subsidiary  sense,  and  to  the  end  that 
there  may  be  regularity  and  dispatch,  that  irrelevant  in- 
quiries may  be  avoided,  and  that  results  may  be  certain  and 
conclusive,  that  matter  of  form  is  inToIved  in  the  new  pro- 
cedure. 


CHAPTER  XIX. 

MOTIONS. 

277.  Motions  and  Orders  Defined. — A  motion  is  an  ap- 
plication, oral  or  written,  addressed  to  a  court  or  a  judge,  by 
a  party  to  an  action  or  proceeding,  or  by  one  interested  there- 
in, asking  the  court  or  judge  to  make  an  order  in  such  action 
or  proceeding.  An  order  is  a  direction  of  a  court  or  a  judge, 
made  or  entered  in  writing,  in  an  action  or  proceeding.  An 
order  differs  from  a  judgment,  which  is  the  final  determina- 
tion of  the  rights  of  the  parties  involved  in  the  particular 
action.  Judgment  terminates  the  action,  but  orders  are 
made  during  the  progress  of  the  action,  and  generally  relate 
to  some  preliminary  or  collateral  question. 

A  motion  is  a  very  common  means  for  invoking  the  action 
of  a  court  or  judge,  and  may  be  employed  by  those  having 
an  interest  in  an  action  or  proceeding,  though  not  parties 
thereto.  At  common  law,  defects  of  form  were  the  subject 
of  special  demurrer ;  but  under  the  codes,  such  defects  are 
to  be  corrected  upon  motion.  Several  matters,  if  connected 
with  the  same  action,  may  be  included  in  one  motion.  Some 
of  the  numerous  instances  in  which  the  action  of  a  court  may 
jc  invoked  by  motion  will  be  stated  in  the  sections  next 
following. 

278.  Motion  to  Strike  from  Files. — A  pleading  or  other 
paper  on  file,  that  is  so  defective  in  form,  or  so  improper  in 
substance,  that  it  ought  not  to  be  placed  on  file,  or  a  pleading 
or  paper  placed  on  file  without  right  to  file  it,  may,  on  mo- 
tion, be  stricken  from  the  files ;  and  the  court  may,  sua  sponte, 
order  such  pleading  or  paper  stricken  from  the  files. 

One  not  a  party  to  an  action  has  no  right  to  file  any  paper 
therein,  without  leave  of  the  court  first  obtained;  and  a 
party  to  an  action  has  no  right  to  file  a  paper  therein,  unless 

ii60 


261  MOTIONS.  §279 

within  rule,^  or  upon  leave  of  the  court  first  obtained.  But 
where  a  pleading  has  been  filed  out  of  rule,  and  without 
leave,  a  reviewing  court  will,  in  the  absence  of  anything  in 
the  record  showing  the  contrary,  presume  that  leave  to  file 
had  been  given.^  This  is  only  treating  the  matter  as  the 
parties  have  treated  it. 

The  court  has  control  of  its  files  and  its  records,  and  the 
object  of  an  order  striking  pleadings  or  papers  from  the  files 
is  simply  to  disencumber  the  files  and  the  records  of  the 
court  of  papers  that  are  in  themselves  improper  and  objec- 
tionable, or  that  are  improperly  placed  on  file.  A  motion  to 
strike  from  the  files  presents  a  question  of  propriety  rather 
than  of  right,  and  is  always  addressed  to  the  discretion  of 
the  court. 

If  a  pleading  is  not  subscribed,  or  is  not  verified,  or  if  the 
verification  is  defective,  or  is  made  by  one  not  authorized  to 
make  it,  the  pleading  is  subject  to  a  motion  to  strike  from 
the  files ;  ^  and  illegibility  of  a  pleading  is  ground  for  such 
motion.*  Where  a  pleading  contains  indecent  and  indecor- 
ous language,  such  as  an  averment  that  the  allegations  of  the 
opposite  party  are  "  corruptly  false,"  it  may  be  stricken  from 
the  files  until  reformed.-^ 

279.  Motion  to  Strike  from  Files,  Continued. — Where 
an  objection  to  a  pleading  is  based,  not  upon  in  irregularity 
connected  with  its  filing,  nor  upon  any  matter  pertaining  to 
its  form  merely,  but  upon  its  alleged  insufficiency  in  matter 
of  substance,  the  objection  must  be  taken  by  demurrer,  and 
not  by  motion  to  strike  from  the  files  ;  ^  it  is  not  the  province 
of  such  motion  to  try  the  sufficiency  of  a  pleading  in  matter 
of  substance.'^     But  where  a  pleading  is,  on  bare   inspection, 

'  In  each  jurisdiction,  days  are  '  Fritz  v.    Barnes,  6    Neb.     435 ; 

fixed,  by  statute  or  by  rule  of  court.  Warner   v.  Warner,  11  Kan.    121; 

within  which  the  several  pleadings  Pudney  v.  Burkhart,  62  Ind.   179. 

in  a  cause  shall  be  filed.     These  are  *  Downer  v.  Staines,  4  Wis.  372  ; 

called  "rule  days;"   and  a  party  Downer  v.  Staines,  5  Wis.  159. 

who  fails  to  file  a  pleading  on  or  *  Mitchell  v.  Brown,  88  N.  C.  156. 

before  the  rule  day  for  such  plead-  *  Finch  v.  Finch,  10  O.  S.  501. 

ing  is  in  default,  and  can  thereafter  ^  Walter  v.  Fowler,  85  N.  Y.  621  : 

file  it  only  upon  leave  of  the  court.  McCammack  v.    McCammack,  86 

*  Goodman  v.  Gay,  15  Pa.  St.  188.  Ind.  387. 


§  279        ORDERLY  PARTS  OF  PLEADING.  262 

and  wiihoat  argument  or  consideration,  so  clearly  and  palpa^ 
l)!}^  bad  as  to  indicate  bad  faith  in  the  pleader,  it  may  be 
stricken  from  the  files  as  frivolous.^  An  answer  in  an  action 
on  a  promissory  note,  stating  only  that  the  note  was  "  not 
outstanding  against  the  defendant,"  and  that  "  there  is  noth- 
ing due  "  on  the  note,  should  be  stricken  from  the  files.^  An 
answer  denying  all  the  material  allegations  of  the  complaint, 
in  manner  and  form  as  therein  set  forth,  denies  nothing,  and 
is  frivolous.^  A  demurrer  interposed  for  a  cause  not  named 
in  the  statute  is  frivolous ;  ^  and  so  is  a  second  demurrer  for 
the  same  cause,  when  the  first  had  been  overruled.  An  ir- 
relevant pleading — one  that  has  no  substantial  relation  to 
the  controversy — may  be  stricken  from  the  files  as  frivolous. 
A  sham  pleading — one  good  in  form,  but  false  in  fact,  and 
pleaded  in  bad  faith — may  be  stricken  out  on  motion.^  The 
essential  test  of  a  sham  pleading  is,  that  its  falsity  shall  be 
clearly  apparent ;  and  it  is  generally  held  that  this  should 
appear  from  the  pleading  itself,  or  from  the  record,  or  from 
facts  within  the  judicial  knowledge  of  the  court ;  though  in 
some  jurisdictions  the  common-law  rule  obtains,  and  on  such 
motion  affidavits  may  be  used  as  to  the  bona  fides  of  a  de- 
fense.® To  strike  out  an  answer  as  sham,  it  must  be  false  in 
the  sense  of  being  a  mere  pretense  set  up  in  bad  faith,  and 
without  color  />f  fact.  The  distinguishing  characteristic  of 
a  sham  defense  is  its  apparent  and  undoubted  falsity.  It 
matters  not  whether  it  be  affirmative  or  negative  in  form,  or 
whether  its  scope  be  such  as  to  involve  all,  or  onl}^  a  part,  of 
the  allegations  of  the  complaint.'^  This  power  to  strike  sham 
pleadings  from  the  files  is  indispensable  to  the  protection  and 
maintenance  of  the  character  of  the  court,  and  the  proper  ad- 

1  Bliss  PI.   421  ;   Boone  PL   253,  App.  572 ;   Ferguson  v.  Troop,  16 

254.     Cf.  Improvement  Co.  v.  Hoi-  Wis.  571. 

way,  85  Wis.  344.  «  Bliss  PL  422  ;  Boone  PL  252. 

^  Per  WfflTE,  J.,  in  Larimore  v.  *  Tylers  Steph.  PL    385  ;  Kay  v. 

Wells,  29  O.  S.  13.  Whittaker,     44     N.     Y.    565.     Cf. 

3  Dole    V.    Burleigh,    1   Dakota,  Werk  v.  Christie,  9  O.  C.  C.  439. 

227.  '  People  v.    McCumber,  18  N.  Y. 

*  Kenworthy  v.  Williams,  5  Ind.  315.      Cf.  Thompson    v.   Erie  Ry. 

375  ;  McMahon  v.  Bridwell,  3  Mo.  Co.,   45  N.    Y.   468  ;    Wayland  v. 

Tysen,  45  N.  Y.  281. 


263  MOTIONS.  §  286 

ministration  of  justice  ;  but  care  should  be  taken  no*:  to  carry 
it  beyond  its  proper  limits,  and  not  to  exercise  it  where  there 
is  in  fact  an  issue  which  the  defendant  is  entitled  to  liave 
tried.^ 

All  motions  should  contain  the  title  of  the  cause,  so  as  to 
identify  them  with  the  action  in  which  they  are  made.  A 
motion  to  strike  a  paper  from  the  files  should  state  the  ground 
of  the  motion,  and  may  be  in  this  form  :  The  deiendan'  moves 
the  court  to  strike  from  the  files  the  plaintiff's  reply  herein, 
for  the  reason  that  the  same  is  not  verified. 

280.  Motion  to  Strike  Out.; — The  pleadings  are  to  con- 
tain statements  of  operative  facts,  and  denials  thereof.  Their 
object  is,  to  bring  the  controversy  before  the  court  in  such 
form  as  clearly  to  disclose  the  respective  claims  of  the  parties, 
to  separate  questions  of  law  from  questions  of  fact,  to  avoid 
inquiry  concerning  matters  not  disputed,  or  not  material, 
and  to  expedite  the  trial  of  causes.  Subsidiary  to  these  ends 
a  process  of  elimination  is  provided,  whereby  redundant,  ir- 
relevant, or  immaterial  matter  may  be  stricken  from  a  plead- 
ing of  fact,  on  motion  of  the  party  prejudiced  thereby.  And 
scandalous  matter,  and  obscene  words,  may  be  stricken  from 
a  pleading,  on  motion  of  a  party,  or  by  the  court  sua  sponte  ; 
the  court  having  inherent  power  to  purify  its  own  records.^ 

To  have  the  pleadings  encumbered  with  needless  or  im- 
proper allegations  is  not  a  mere  scientific  blemish,  it  is  a  great 
inconvenience  and  hindrance  to  procedure.  One  purpose  of 
a  motion  to  strike  out,  and  a  principal  use  made  of  it,  is,  to 
have  the  court  determine,  before  the  party  responds  to  the 
pleading,  whether  the  matter  attacked  by  motion  is  to  be  in- 
volved in  the  subsequent  pleadings,  and  in  the  trial  of  th 
cause.  For  example,  if  the  complaint  contain  allegations 
which  the  defendant  believes  to  be  immaterial  or  irrelevant, — 
allegations  which,  if  immaterial  or  irrelevant,  do  not  require 
an  answer,  and  can  not  be  proved  or  relied  upon  in  the  trial, 
— he  may,  without  waiting  to  have  the  matter  decided  upon 

^Improvement  Co.  v.   Hoi  way,     188;  Dcter,  J.,  in  Bowman  v.  Shel- 
85  Wis.  344.  don,     5    Sand.     657 ;    Opdyke    v. 

5  Mussina  v.  Clark,  17  Abb.  Pr.     Marble,  18  Abb.  Pr.  266. 


a  281        ORDERLY  PARTS  OF  PLEADING.  264 

objection  to  evidence  at  the  trial,  or  in  the  charge  to  the  jury, 
obtain  a  ruling  of  the  court  at  once,  upon  his  motion  to  strike 
out  such  allegations ,  and  having  obtained  such  ruling,  the 
defendant  is  advised  as  to  whether  his  answer  must  respond 
to  such  allegations,  and  both  parties  are  advised  as  to  whether 
they  are  to  be  involved  in  the  trial. 

281.  Motion  to  Strike  Out,  Continued. — Matter  that  is 
redundant,  irrelevant,  or  immaterial  may  be  stricken  out. 
Redundancy  is  excessive  statement — superabundance,  not 
merely  of  words,  but  of  sl.itement.  Pleonasm  is  a  fault  of 
rhetoric,  not  of  pleading  Heiice,  mere  prolixity  or  useless 
descriptive  matter  will  seldom  be  stricken  out  as  redundant ;  ^ 
tliough  where  the  provisions  of  a  charter  were  needlessly 
recited,  they  were  stricken  out  as  redundant.^  Where  an 
answer  contains  a  general  denial,  and  in  addition  thereto  a 
statement  of  evidential  facts  amounting  to  an  argumentative 
denial,  the  latter  may  be  stricken  out  on  motion ;  ^  it  is  re- 
dundant. 

An  allegation  is  irrelevant,  when  it  does  not  relate  to  or 
affect  the  matter  in  controversy,  and  when  it  can  in  no  way 
affect  or  assist  the  decision  of  the  court.  And  matter  alleged 
in  a  pleading  is  immaterial,  when  a  denial  thereof  would  pre- 
sent an  immaterial  issue,  and  when  it  could  be  stricken  from 
the  pleading  without  affecting  its  legal  sufficiency  or  effect. 
Matter  of  argument  may  be  stricken  from  a  pleading  as  ir- 
relevant \  *  and  so  may  matter  of  evidence.^  Evidential  facts 
may  be  relevant  to  an  issue,  and  so  be  admissible  upon  the 
trial ;  but  they  can  not  be  relevant  to  the  formation  of  an 
issue.  A  statement  of  the  defendant's  reason  for  pleading 
the  statute  of  limitations  may  be  stricken  out ;  '  it  is  both 
irrelevant  and  immaterial.  In  a  cause  of  action  for  breach  of 
warranty,  an  averment  of  scienter  would  be  both  immaterial 
and  irrelevant.     If  a  plaintiff  in  ejectment,  after  stating  his 

'Moffatt  V.  Pratt,  12  How.  Pr.  ■'Harris,   J.,  in  Gould   v,    Wil- 

48.  liams,  9  Hoa7.  Pr.  51. 

2  Durch  V.  Chippewa  Co.,  60  "Wis.  '  McCaviley  v.  Long,  61  Tex.  74  , 

227.  Bowen  v.    Aubrey,    22   Cal.   566; 

'  DeForrest  v.  Butler,  62  Iowa,  Cathcart  v.  Peck,  11  Minn.  45. 

78.  «  Nichols  v.  Briggs,  >8  S.  C.  473. 


265  MOTIONS.  §§  282-283 

title,  describe  the  sheriff's  sale  and  deed  to  him,  such  descrip- 
tion may  be  stricken  out  on  motion.^  Irrelevant  matter  in 
an  answer,  responsive  to  irrelevant  matter  in  the  complaint, 
may  be  stricken  out  on  motion.^ 

282.  Motion  to  Strike  Out,  Continued. — It  is  a  gen- 
eral requirement  that  motions  shall  be  specific  in  their  ob- 
ject, and  certain  in  their  application ;  and  a  motion  to  strike 
out  improper  matter  in  a  pleading  must  designate  it  with 
certainty.^  This  may  be  done  by  recapitulating  the  words 
to  be  stricken  out,  or,  if  the  matter  be  long,  by  giving  the 
words  at  the  beginning  and  at  the  close  thereof ;  ^  a  reference 
to  the  page  and  lines  of  the  pleading  is  not  sufficient,^  for 
these  indications  disappear  when  the  pleading  is  copied  into 
the  record.  Care  should  be  taken  not  to  include  material 
and  unobjectionable  words  in  the  matter  asked  to  be  stricken 
out,  for  in  such  case  the  whole  motion  must  be  denied.^  The 
court  should  exercise  its  power  under  a  motion  to  strike  out, 
with  reluctance  and  caution,'^  for  if  material  matter  be 
stricken  out  it  will  be  error ;  while  refusal  to  strike  out  will 
seldom  be  to  the  prejudice  of  any  one.^  If  a  party  demur  to 
or  answer  a  pleading  containing  matter  that  might  be  stricken 
out  on  motion,  he  thereby  waives  the  right  to  object  by 
motion,  unless  leave  of  court  be  obtained.^ 

A  motion  to  strike  out  may  be  in  form  as  follows :  The 
defendant  moves  the  court  to  strike  out  of  the  complaint  all 
that  part  thereof  beginning  with  the  words  "  And  the  plaint- 
iff further  says,"  and  ending  with  the  figures  "1895,"  for 
the  reason  that  the  same  is  redundant  and  irrelevant. 

283.  Motion  to  Make  Definite. — Each  party  has  a  right 
to  know  from  his  adversary,  and  with  reasonable  certainty, 

^  Warner  v.    Nelligar,  12  How.        '  Robinson  v.    Rice,  20  Mo.  229 ; 

Pr.  402.  Patterson  v.  Hollister,  32  Mo.  478. 

'  Mayer    Co.    v.   Goldenberg,    1        «  Wliite  v.   Allen,  3   Oreg.    103  ; 

Ohio     Nisi    Prius    Rep.   189.     Cf.  Gilbert  v.  Loberg,  86  Wis.  661. 
Pom.  Rem.  578.  '  Essex  v.    RJ^  Co.,  8  Hun,  361 ; 

'  Jackson  v.  Bowles,  67  Mo.  609.  St.  John  v.  Griffith.  1  Abb.  Pr.  39. 

*  O'Connor  v.  Koch,  56  Mo.  253  ;        «  Gate  v.  Oilman,  41  Iowa,  530. 
Bryant  v.    Bryant,   2  Robt.   612  ;        «  Russel  v.  Chambers,  31    Minn. 

Pearce  v.  Mclntyre,  29  Mo.    423  ;  54. 
Blake  v.  Eldred,  18  How.  Pr.  240. 


§  2S4        ORDERLY  PARTS  OF  PLEADING.  266 

what  cliiira  or  defense  be  is  required  to  meet,  in  order  that 
he  may  prepare  to  meet  it,  and  that  he  may  not  be  taken  by 
sui-prise  at  the  trial  ;  and  wlien  the  statements  of  a  pleading 
are  so  indefinite  and  uncertain  that  the  precise  nature  of  the 
claim  or  defense  is  not  apparent,  the  court  may,  on  motion, 
require  them  to  be  made  definite  and  certain,  by  amendment 
of  the  pleading.  '  A  party  is  bound  to  disclose  in  his  plead- 
ing all  the  operative  facts  upon  which  he  relies,  and  is  neither 
required  nor  allowed  to  display  therein  evidential  facts.  /  But 
all  statements,  whether  of  operative  facts  or  of  denials,  should 
be  so  framed  as  to  be  clear  and  certain  ;  and  therefore  such 
incidents,  or  closely  related  facts,  as  may  be  requisite  to  this 
end,  should  be  stated  also.^  And  when  a  pleading  is,  in  any 
material  matter,  so  ambiguous  or  indefinite  as  to  render  its 
meaning  uncertain,  and  thereby  to  embarrass  the  adverse 
part}',  it  may  be  corrected  by  motion  to  make  it  definite  and 
certain  in  such  particular.^ 

Where  a  complaint  makes  it  uncertain  whether  the  plaint- 
iff relies  upon  an  affirmance  of  a  contract  or  a  rescission 
thereof,^  or  whether  the  cause  of  action  is  in  tort  or  in  con- 
tract,^ or  whether  he  sues  for  an  agreed  price  or  for  a  quantum 
meruit,^  he  may  be  required,  by  motion,  to  make  his  com- 
plaint definite  in  such  respect.  Uncertainty  as  to  time,  Avhen 
time  is  not  a  material  element  of  the  right  asserted,^  and 
uncertainty  in  an  allegation  of  negligence,'  are  defects  to 
be  cured  by  motion  to  make  definite.  So,  the  allegation  of 
a  legal  conclusion,  as,  that  one  holds  the  legal  title  to  prop- 
erty in  trust,^  is  vulnerable  to  a  motion  to  make  definite  by 
stating  the  operative  facts. 

284.  Motion  to  Make  Definite,  Continued. — An  argu- 
mentative denial — that    is,   a  statement  of  evidential  facts 

'  Ante,  189,  190.  «  People  v.  Ryder,  12  N.  Y.  433 ; 

'  Pa.  Co.  V.  Sears,  136  Ind.  460.  Ry.  Co.  v.  Shanklin,  94  Ind.  297. 

^  Faulks  V.  Kamp,  8  Jones  &  S.  "^  Penn.  Co.  v.  Sedgwick,  59  Ind. 

70.  336 ;  Tump.  Co.  v.  Hiimphrey,  59 

*  Ladd  V.  Arkell,  5  Jones  &  S.  Ind.  78 ;  Ry.  Co.  v.  CoUam,  73 
35  ;  IXGALLS,   J.,  in  Conoughty  v.  Ind.  261. 

Nichols,  42  N.  Y.  88.  »  Horn  v.  Ludington,  28  Wis.  81. 

*  Gardner  v.  Locke,  2  Civ.  Proc. 
252  ;  Dorr  v.  JVIills.  3  Civ.  Proc.  7. 


267  MOTIONS.  ^285 

which,  arguendo^  controvert  the  statement  of  the  other  side, 
is  not  a  nullity,^  and  may  not  be  demurrable,^  but  is  subject 
to  a  motion  to  make  definite,  and,  if  accompanied  by  a  gen- 
eral denial,  may  be  stricken  out  as  surplusage.^  A  nega- 
tive pregnant,  a  denial  which  by  implication  admits  a  mate- 
rial part  of  what  is  apparently  controverted,  is  evasive  and 
ambiguous,  and  is  therefore  subject  to  a  motion  to  make 
definite. 

A  pleading  may  be  so  uncertain  and  indefinite  as  to  be 
subject  to  cori-ection  on  motion,  and  yet  hi  good  as  against 
a  demurrer ;  ^  for  indefiniteness  is  a  defect  of  form,  and  not 
of  substance.  A  defect,  to  be  remedied  by  motion  to  make 
definite,  must  appear  upon  the  face  of  the  pleading  ;  ^  matters 
dehors  the  record  can  not  be  considered  ;  ^  and  such  defects 
must  be  remedied  by  motion,  and  not  by  excluding  evidence 
at  the  trial.'^  A  motion  to  make  definite  and  certain  must 
specify  the  particular  deficiency  to  be  remedied,^  and  may 
be  in  the  form  following :  Now  comes  the  plaintiff  and 
moves  the  court  to  require  the  defendant  to  make  his  first  de- 
fense to  plaintiff's  second  cause  of  action  definite  and  certain, 
by  stating  therein  the  facts  whereby  he  claims  said  instru- 
ment "  was  fraudulently  procured  from  him." 

285.  Motion  to  Separately  State  and  Number. — A 
plaintiff  having  several  distinct  rights  of  action  against  the 
same  person  may,  subject  to  certain  restrictions,  pursue  them 
in  one  action,  separately  stating  his  causes  of  action.^  If  two 
or  more  causes  that  are  not  joinable  are  united,  whether  by 
separate  statements  or  by  one  commingled  statement,  the 
fault  is  misjoinder  ;  if  two  or  more  causes  that  are  properly 
joinable  are  commingled  in  one  statement,  the  fault  is  com- 

1  Simmons  v.    Green,   35    O.    S.  «  Scofield  v.   Bank,  9  Neb.  316 ; 

104  ;  Loeb  v.  Weis,  64  Ind.  285.  Hopkins  v.  Hopkins,  28  Hun,  436. 

'  Pom.  Rem.  627,  632  ;  Bank  v.  '  Kerr  v.    Hays,    35  N.  Y.  C31 ; 

Hendrickson,  40  N.J.  L.  52.  Greenfield   v.    Ins.    Co.,    47  N.  Y. 

•^  Pom.  Rem.   632 ;    DeForrest  v.  430  ;  Ready   v.    Summer,  37  Wis. 

Butler,  62  Iowa,  78.  265  ;  Spies  v,  Roberts,  18  Jones  & 

••  Ry.  Co.  V.  Iron  Co.,  46  O.  S.  S.  301. 

44.  *  Gilmore    v.    Norton,    10  Kan. 

'BrowTi  V.  Ry.  Co.,  6  Abb.   Pr.  491. 

237.  9  ^nte,  195  et  seq. 


t<28e  ORDERLY  PARTS  OF  PLEADING.  268 

moiily  called  duplicity.  Misjoinder  relates  to  thefaet  of  the 
union,  and  is  remediable  by  demurrer  ;  ^  duplicity  relates  to 
the/orw  of  the  union,  and  is  remediable  by  motion  to  require 
the  plaintiff  to  separately  state  and  number  his  several  causes 
of  action. 

A  defendant  may  join  in  his  answer  as  many  grounds  of 
defense,  counter-claim,  and  set-off,  as  he  may  have,  subject 
only  to  the  requirement  that  they  shall  be  separately  stated 
and  numbered,  and  that  inconsistent  defenses  shall  not  be 
joined.2  If  inconsistent  defenses  are  improperly  joined,  the 
remedy  is  by  motion  to  require  the  defendant  to  elect  upon 
which  he  will  rely  ;  if  several  defenses  are  commingled  in  one 
statement,  the  remedy  is  by  motion  to  require  the  defendant 
to  separately  state  and  number  his  several  defenses. 

Whatever  operative  facts  would,  if  stated  by  themselves, 
entitle  the  plaintiff  to  relief  by  action,  constitute  a  right  of 
action,  and  should  be  separately  stated  as  a  cause  of  action. 
And  any  denial,  or  any  statement  of  operative  facts,  that  will 
show  that  the  plaintiff  is  not  entitled  to  relief,  or  that  will 
wholly  or  partly  defeat  his  claim,  is  a  defense,  and  should  be 
separately  stated  as  such.  And  each  separate  and  distinct 
counter-demand  should  be  separately  stated.  The  require 
ment  that  separate  and  distinct  causes  of  action,  defenses* 
and  counter-demands,  when  joined,  shall  be  separately  stated, 
is  intended  to  facilitate  the  formation  of  issues,  both  in  fact 
and  in  law  ;  and  though  it  is  matter  of  form,  and  is  waived 
if  not  corrected  at  the  proper  time  and  in  the  proper  way,  it 
is  an  important  and  valuable  means  for  securing  singleness, 
certainty,  and  precision  in  the  issues. 

286.  Motion  to  Separately  State  and  Number,  Con- 
tinued.— Material  matter,  though  ill  pleaded,  may  make  a 
pleading  double ;  for  material  matter,  though  insufficiently 
pleaded,  may,  if  sufficient  in  substance,  be  the  subject  of  a 
material  issue.  On  the  other  hand,  immaterial  matter  can 
not  operate  to  make  a  pleading  double,  because  no  material 
issue  can  be  made  upon  it.  Accordingly,  where  allegations 
of  new  matter  in  an  answer  are  without  merit  as  matter  of 

>  Post,  299.  «  Ante,  261-26& 


269  MOTIONS  §  287 

defense,  the  proper  remedy  is  a  motion  to  strike  out,  and  not 
a  motion  to  separately  state  and  number.^  Where  matter 
that  in  itself  constitutes  a  ground  of  recovery  or  of  defense  is 
pleaded  only  as  a  necessary  inducement  to  other  matter,  and 
it  is  apparent  that  the  claim  or  defense  is  rested  on  the  latter, 
and  not  on  the  former,  the  pleading  is  not  double.^  But  if 
the  matter  so  pleaded  as  inducement  is  not  necessary  for  that 
purpose,  it  may  itself  become  a  ground  of  recovery  or  de- 
fense,^ and  should  be  subject  to  correction  by  motion  to 
separately  state  and  number. 

It  is  a  rule  of  common-law  pleading,  and  applicable  in 
code  pleading,  that  no  matters,  however  multifarious, 
will  make  a  pleading  double,  if  together  they  constitute  but 
one  connected  proposition  or  entire  point.^  Thus,  in  an  ac- 
tion for  assault  and  imprisonment,  the  defendant  may  plead 
in  avoidance  that  he  arrested  the  plaintiff  on  suspicion  of 
felony,  and  may  set  forth  several  circumstances  of  suspicion, 
each  one  of  which  would  alone  justify  the  arrest ;  for  all  the 
circumstances  taken  together  amount  to  only  one  connected 
ground  of  suspicion,  and  constitute  but  one  defense. 

It  seems  that  the  refusal  of  a  motion  to  require  causes  or 
defenses  to  be  separated  is  not  an  error  for  which  final  judg- 
ment will  be  reversed,  unless  it  appear  that  by  such  refusal  the 
party  complaining  has  been  deprived  of  a  substantial  right.^ 

A  motion  to  require  causes  or  defenses  to  be  separated 
need  not  specify  the  several  causes  or  defenses,  and  may  be 
in  this  form :  The  defendant  moves  the  court  to  require  the 
plaintiff  to  separately  state  and  number  his  several  causes  of 
action. 

287.  Waiver  of  Formal  Defects. — The  general  rule  is, 
that  where  a  pleading  is  insufficient  in  matter  of  substance, 
the  defect  is  not  waived  by  pleading  over,  or  by  going  to 

'  Ridenour  v.  Mayo,  29  O.  S.  138.  ••  Steph.  PI.  307  ;  Bliss  PI.  294. 

»  Steph.    PI.    306  ;   Raymond  v.  »  Bear  v.  Knowles,  36  O.  S.  43 ; 

Sturges,    23    Conn.    134  ;   Lord  v.  Goldburger  v.  Utley,  60  N.  Y.  427. 

Tyler,  14  Pick.  156  ;  Ross  v.  Mather,  Contra,  Pierce  v.  Bicknell,  11  Kan. 

51  N.  Y.  108.  262. 

*  Conaughty  v.  Nichols,  42  N.  Y. 
83. 


g  287  ORDERLY  PARTS  OF  PLEADING.  270 

trial  without  demurriiig,  unless  the  defect  be  cured  by  alle- 
gations in  a  subsequent  pleading.  But  the  rule  as  to  de- 
fects of  form  is  different.  These  defects  are  corrected  at  the 
instance  of  the  adverse  party,  and  for  his  convenience  ;  and 
if  he  answer  or  demur  to  a  pleading,  he  thereby  admits  that 
he  has  not  been  inconvenienced  or  misled  by  any  formal  de- 
fect therein,  and  is  held  to  have  waived  his  right  to  have  it 
corrected.! 

Where  a  defendant  in  an  action  on  a  promissory  note 
pleads,  in  general  terms,  that  it  "was  and  is  wholly  without 
consideration,  and  void,"  and  the  plaintiff  does  not  move  to 
make  definite  by  requiring  a  statement  of  the  facts  on  which 
the  defense  is  based,  he  waives  his  right  to  object  to  the  form 
of  the  defense;  and  any  evidence  is  admissible  on  the  trial 
that  will  tend  to  impeach  or  sustain  the  consideration. ^ 
"Where  two  causes  of  action  are  properly  joined,  but  are 
commingled  in  one  statement,  and  the  defendant,  without 
objection  by  motion  to  separate  them,  answers  both  causes, 
and  proceeds  to  trial,  he  waives  the  right  to  object  to  the 
duplicity.^  Where  a  complaint  based  upon  an  appraisement 
alleges  that  an  appraisement  had  been  "  duly  and  legally 
made,"  and  the  answer  alleges  only  that  "  the  appraisement 
was  not  duly  and  legally  made,"  and  the  plaintiff  proceeds 
to  trial  without  moving  to  require  the  defendant  to  make 
his  answer  definite  by  stating  in  what  respect  the  appraise- 
ment was  not  legal,  the  defect  is  waived.*  Where  the  com- 
plaint of  a  corporation  contained  no  averment  of  corporate 
existence,  and  no  objection  was  made  until  after  judgment, 
the  defect  was  held  to  be  waived.°  Want  of  subscription  or 
verification  is  a  mere  irregularity,  which  is  waived  by  demur- 
ring or  by  pleading  over ;  ^  the  objection  can  not  be  raised  on 

1  Garard  v.  Garard,  135  Ind.  15.  McCarthy  v.  Garraghty,  10  O.  S. 

«  Chamberlain  v.  Ry.  Co. ,  15  O.  S.  438. 
225 ;  Larimore  v.  Wells,  29  O.  S.        *  Trustees  v.  Odlin,  8  O.  S.  293. 
13.     Cf.  Bank  v.  Sherman,  33  N.  Y.        »  Spence  v.  Ins.  Co. ,  40  O.  S.  517. 
69.  « State  v.    Bath,    21   Kan.    583, 

'  McBanney  v.  McKinney,  8  0.  S.  State  v.  Chadwick,  10  Oreg.  423  : 

423  ;  Truitt  v.  Baird,  12  Kan.  420  ;  Hughes  v.   Feeter,  18  Iowa,  142  ; 

Cobb  V.  Ry.  Co.,  38  Iowa,  601.     Cf.  Butler  v.  Church,  14  Bush,  540. 


271  MOTIONS.  P  288 

tlie  trial,^  nor  for  the  first  time  in  a  reviewing  court.^ 
Want  of  capacity  to  sue,  if  not  taken  advantage  of  by 
demurrer  or  answer,  is  waived  ;^  and  the  objection  that  there 
is  a  defect  of  parties,*  or  a  misjoinder  of  parties,'  or  a  mis- 
joinder of  causes  of  action,^  must  be  taken  advantage  of  by 
demurrer  or  answer,  or  the  right  to  object  for  such  cause 
will  be  waived.  The  use  of  initial  letters  instead  of  the 
full  name  of  a  party  may  be  corrected  by  motion  to  make 
definite,  but  such  defect  is  waived  by  answering  to  the 
merits^  Misnomer  of  a  defendant  corporation  is  waived  by 
answering  to  the  merits,  and  can  not  be  made  the  ground  of 
objection  to  the  admission  of  testimony  at  the  trial.  Such 
error  must  be  taken  advantage  of  in  the  pleadings,  and  before 
answering  to  the  merits.^ 

288.  Waiver  of  Formal  Defects,  Continued. — Courts 
have  sometimes  gone  a  great  length  in  the  application  of  this 
rule.  In  an  action  on  contract,  the  defendant  pleaded  a 
counter-claim  for  an  independent  tort.  The  plaintiff,  instead 
of  objecting  to  the  counter-claim  as  improper,  replied  by 
general  denial,  and  went  to  trial.  The  trial  court  excluded 
all  evidence  in  support  of  the  counter-claim.  This  was  held 
to  be  error ;  for  although  the  counter-claim  was  improper, 
and  could  not  have  been  sustained  if  properly  objected  to, 

•Schwarz  v.  Oppold,   74  N.   Y.  Potter   v.    Ellice,   48  N.   Y.   321; 

307.  Walker  v.   Deaver,  79  Mo.  664. 

*  Payne  v,  Flournoy,  29  Ark.  500.  ^  Long  v.  DeBevis,   31  Ark.  480  ; 
'  Pierrepont  v.  Lovelass,  4  Hun,  Tennant  v.  Pfister,  51  Cal.  511. 

896  ;  H.op  v.    Plummer,  14  O.  S.  «  James  v.  Wilder,  25  Minn.  305; 

44?,   People  v.  Tel.  Co.,  31  Hun,  Cloon  v.    Ins.    Co.,  1   Handy,  32; 

596 ;  Jones  v.  Steele,  36  Mo.  324 ;  Blossom  v.  Barrett,  37  N.  Y.  434 ; 

Palmer  v.    Davis,    28   N.    Y.    242  ;  Field  v.  Hurst,  9  S.  C.  277 ;  Finley 

McNair    v.    Toler,    21    Minn.    175  ;  v.  Hayes,  81  N.  C.  368  ;  Simpson  v. 

Perkins  v.  Ingcrsoll,   1  Dill.   417  ;  Greeley,   8    Kan.    586 ;    Jessup  v. 

Haskins  v.  Alcott,  13  O.  S.  210.  Bank,  14  Wis.  331;  Cary  v.  Wheeler, 

*  Merritt  v.  AValsh,  32  N.  Y.  685  ;  14  Wis.  281  ;  Haverstock  v.  Trudel, 
Horstekote  v.  Menier,  50  Mo.  158;  51  Cal.  431. 

Butler    V.   Lawson,    72    Mo.    227 ;  ■"  Nichols    v.    Dobbins,     2  Mont. 

Blackeley    v.    LeDuc,     22    Minn.  540;  Nelson  v.  Highland,  13    Cal. 

476  ;  Lowry  v.  Harris,  12  Minn.  255  ;  74. 

Waits  V.    McCluro,  10  Bush,   76n  ;  » School  Dist.  v.  Griner,  8  Kan. 

Davis   V.    Choteau,  32  Minn.    548 ;  224. 

Dunn  V.   Ry-    Co.,   68    Mo.    268; 


g  288  ORDERLY  PARTS  OF  PLEADING.  272 

the  right  to  object  had  been  waived,  and  the  evidence  should 
have  been  received.^  In  an  action  for  flowing  plaintiff'* 
lands,  the  defendant  alleged  a  user  for  more  than  twenty- 
years,  but  did  not  aver  that  this  user  was  adverse.  The 
plaintiff,  instead  of  demurring,  replied  a  general  denial ;  and 
on  his  objection,  the  trial  court  excluded  all  evidence  in 
support  of  the  alleged  user.  The  reviewing  court,  admitting 
that  the  answer  was  demurrable  for  not  averring  the  adverse 
character  of  the  user,  held  that  by  replying  and  going  to 
trial,  the  plaintiff  had  waived  his  right  to  object  to  it  on  that 
ground.^  This  was  clearly  a  mistaken  application  of  the 
rule.  Insufficiency  in  matter  of  substance  is  not  waived  by 
failure  to  demur ;  and,  if  not  cured  by  subsequent  pleading, 
may  be  made  the  ground  of  objection  to  evidence  on  the 
trial. 

It  seems,  that  a  party  who  has  filed  a  meritorious  motion  is 
not  in  default  so  long  as  his  motion  is  pending ;  but  that  a 
motion  that  is  frivolous,  and  without  merit,  does  not  stand 
in  the  way  of  judgment  by  default.^ 

'  Roback  v.  Powell,  36   Ind.  515.        »  Kellogg  v.  Churchill,  1  W.  L. 
'  White  V.    Spencer,     14  N.  Y.    M.  45  ;  Kin  yon  v.  Palmer,  20  Iowa, 
247.  138. 


X 


CHAPTER  XX. 

DEMURRERS. 

289.  General  Grounds  for  Demurrer. — The  philosophy 
of  the  demurrer  has  heretofore  been  explained,^  and  the  nature 
and  office  of  demurrer  at  common  law  ^  and  in  equity  ^  have 
been  stated.  The  general  object  of  the  demurrer  under  tlie 
new  procedure  is  the  same  as  at  common  law ;  it  questions 
the  legal  sufficiency  of  the  pleading  demurred  to.  A  de- 
murrer is  not  a  pleading  of  fact ;  it  neither  alleges  nor 
denies  any  fact ;  it  is  an  objection  on  legal  grounds,  and 
questions  the  right  to  proceed,  for  the  reason  (1)  that  the 
court  has  not  jurisdiction ;  or  (2)  that  the  pleadings  do  not 
present  a  fit  question  for  litigation  ;  or  (8)  that  the  inci- 
dents of  parties,  capacity,  etc.,  do  not  make  the  occasion  a 
pioner  o;ie  for  invoking  the  action  of  the  court. 

The  general  provision  of  the  codes  is,  that  the  defendant 
may  demur  to  the  complaint  when  it  appears  on  its  face, 
(1)  that  the  court  has  not  jurisdiction,  or  (2)  that  the  facts 
stated  do  not  constitute  a  cause  of  action,  or  (3)  that  the 
plaintiff  has  not  legal  capacity  to  sue,  or  (4)  that  anotlier 
action  for  the  same  cause  is  pending  between  the  same 
parties,  or  (5)  that  there  is  a  defect  of  parties,  plain tif:  or 
defendant,  or  (6)  that  several  causes  of  action  are  improp- 
erly joined.  The  plaintiff  may  demur  to  a  counter-claim, 
a  set-off,  or  a  defense  of  new  matter,  on  the  ground  that  it 
is,  on  its  face,  insufficient  in  law  ;  and  the  defendant  may, 
on  like  ground,  demur  to  a  reply,  or  to  any  separate  traverse 
or  avoidance  therein.  When  the  defendant  demands  affirm- 
ative relief,  the  plaintiff  may  demur  on  grounds  similai-  to 
those  for  demurrer  to  the  complaint ;  and  where  a  countei- 
claim  asserts  a  demand  of  a  character  not  proper  to  be  so 

i  Ante,  35.  ^  .^nte.  1^6. 

•  Ante,  79. 

273 


^g  290-291        ORDEELY  PARTS  OF  PLEADING.  274 

pleaded,  the  remedy  is  generally  by  demurrer.  In  a  few 
states,  misjoinder  of  parties  plaintiff  is  made  a  ground  for 
demurrer;  and  in  one  or  two,  a  complaint  is  demurrable  if 
the  facts  stated  do  not  entitle  the  plaintiff  to  the  particular 
relief  demanded.^ 

The  only  grounds  for  demurrer,  under  the  new  procedure, 
are  those  specified  by  the  codes  of  the  several  states  ;  ^  and 
these  must  be  consulted  for  particular  guidance  in  matters 
of  such  detail  and  of  such  local  importance  as  not  to  fall 
within  the  general  purpose  and  plan  of  this  work. 

290.  General  and  Special  Demurrers. — At  common 
law,  demurrers  are  either  general  or  special.  The  former 
relate  to  matters  of  substance,  and  need  not  assign  any  par- 
ticular ground  of  objection ;  the  latter  relate  to  matters  of 
form,  and  must  point  out  the  formal  defect  with  particular- 
ity. Under  the  new  procedure,  mere  defects  of  form,  such 
as  redundancy,  uncertainty,  and  duplicity,  are  to  be  cured 
by  motion,  and  not  by  demurrer.  But  most  of  the  codes 
require  the  demurrer  to  specify  the  grounds  of  objection ; 
and  some  of  them  provide  that  when  a  demurrer  does  not 
specify  the  grounds  of  objection,  it  shall  be  regarded  as 
objecting  only  that  the  court  has  not  jurisdiction,  or  that 
the  facts  stated  are  insufficient.  While  the  distinct  offices 
of  the  common-law  demurrers  are  not  retained  in  the  new 
procedure,  the  distinct  forms  thereof  are  thus  retained  ;  and 
this  analogy,  the  common  usage,  and  convenience  and  per- 
spicuity of  treatment,  are  sufficient  warrant  for  adopting  the 
common-law  designations,  and  calling  that  a  general  demurrer 
which  assigns  no  particular  ground  of  objection,  and  that  a 
special    demurrer  which   points  out  some  particular  defect. 

291.  General  Demurrer — Want  of  Jurisdiction. — 
Jurisdiction  is  the  power  of  the  court  to  entertain  an  action, 
to  hear  and  determine  controversies  therein,  and  to  enforce 
its  decision.  To  give  jurisdiction  the  court  must,  b}'  the 
constitution  and  the  laws,  have  cognizance  of  the  subject- 

■  Meyer  v.  Dubuque,  43  Iowa.  280 ;  Beale  v.  Hayes,  5  Sand.  640  ; 
592;  Iowa  Code,  2648.  Harper  v.    Chamberlain,  11  Abb. 

»  DeWitt  V.   Swift,  3  How.  Pr.     Pr.  234. 


:iO 


DEMURRERS.  §  291 


matter  of  the  action ;  the  defendant  must  be  before  the  court, 
either  by  voluntary  appearance,  or  by  service  of  process  ; 
and,  in  local  actions,  the  subject  of  the  action  must  be  within 
the  territorial  jurisdiction  of  the  court.  The  subject-matter 
of  the  action  is  the  right  asserted  hy  tlie  plaintiff,  the  ground 
upon  which  he  demands  the  judgment  of  the  court.  Juris- 
diction of  the  subject-matter  is  conferred  only  by  the  consti- 
tution and  the  law  ;  and  these,  upon  considerations  of  public 
policy,  define  and  limit  that  jurisdiction. 

Want  of  jurisdiction  may  be  asserted  by  answer,  or  by 
demurrer.  If  it  appears  upon  the  face  of  the  complaint  that 
the  court  has  not  jurisdiction,  the  objection  should  be  taken 
by  demurrer  ;  otherwise,  the  facts  showing  want  of  jurisdic- 
tion should  be  brought  before  the  court  by  answer.  If  it 
appears  from  the  complaint  that  the  subject-matter  of  the 
action  does  not  fall  within  the  established  cognizance  of  the 
court,  the  complaint  is  demurrable.  If,  for  example,  the 
consideration  of  the  demand  asserted  belongs  to  the  political 
department  of  the  government,  the  judiciary  would  have  no 
authority,^  and  demurrer  for  want  of  jurisdiction  would  be 
proper. 

Exclusive  cognizance  of  certain  matters  is  sometimes  given 
to  courts  of  special  jurisdiction,  such  as  courts  of  probate ; 
and  some  courts  are,  by  their  creation,  given  a  limited  juris- 
diction, extending  only  to  certain  specified  causes.  The 
federal  courts  are  of  special  and  limited  jurisdiction.  Tlie 
general  government  is  of  limited  and  enumerated  powers, 
conferred  upon  it  by  the  constitution.  The  judicial  power 
is  part  of  the  constitutional  grant  of  powers,  and  tlie  federal 
courts  are  restricted  to  the  cognizance  of  such  matters  as 
fall  within  the  provisions  of  the  constitution  and  the  laws 
enacted  thereunder.  In  courts  of  general  jurisdiction,  the 
right  to  entertain  the  action  will  be  presumed,  unless  the 
want  of  jurisdiction  appear  from  the  complaint ;  but  in 
courts  of  limited  or  special  jurisdiction  there  is  no  such  pre- 
sumption, and  the  jurisdiction  must  aflSrmatively  appear 
from   the   complaint.'*     And  when   jurisdiction  is   specially 

>  Cooley's  Prin.  Const.  Law,  146.        »  Gilbert  v.  York,  111  N.  Y.  544 ; 


:g  292        ORDERLY  PARTS  OF  PLEADING.  276 

conferred  by  statute,  whether  upon  a  court  of  general  or  of 
inferior  jurisdiction,  the  coraphiint  must  show  that  the  case 
comes  within  the  provisions  of  the  statute.^  The  general 
rule,  as  sometimes  stated,  is,  that  "  nothing  shall  be  intended 
to  be  witJiout  the  jurisdiction  of  a  superior  court,  but  that 
which  specially  appears  to  be  so ;  and  nothing  shall  be 
intended  to  be  within  the  jurisdiction  of  an  inferior  court, 
but  that  which  is  so  expressly  alleged." 

292.  General  Demurrer — Want  of  Jurisdiction,  Con- 
tinued.— In  local  actions,  such  as  for  the  recovery  of  real 
property,  or  the  foreclosure  of  a  mortgage,  it  should  appear 
that  the  subject  of  the  action  is  within  the  territorial  juris- 
diction of  the  court  whose  action  is  invoked.  But  the  com- 
plaint is  subject  to  demurrer  only  when  it  affirmatively 
appears  that  the  subject  of  the  action  is  without  the  jurisdic- 
tion ;  ^  if  the  locus  of  the  subject  of  the  action  simply  does 
not  appear,  the  complaint  is  subject  to  a  motion  to  make 
definite,  but  not  to  demurrer. 

If  it  appear  from  the  complaint  that  the  court  has  not 
jurisdiction  of  the  person  of  the  defendant,  it  is  subject  to  a 
special  demurrer  for  that  cause ;  and  upon  demurrer  for  such 
cause,  the  court  will  look  only  to  the  pleading,  and  not  to 
the  return  of  process.^  Want  of  jurisdiction  of  the  person 
of  the  defendant  may  be  waived  ;  but  want  of  jurisdiction 
of  the  subject,  or  of  the  subject-matter,  can  not  be.  If  the 
defendant  voluntarily  appear,  to  contest  the  merits  of  the 
cause,  whether  by  motion  or  by  formal  pleading,  he  thereby 
submits  himself  to  the  jurisdiction  of  the  court.^  Such  ap- 
pearance, even  to  question  the  jurisdiction  of  the  court  on 
ground  other  than  want  of  jurisdiction  of  the  person,  is  a 

United  States  v.  Clarke,  8  Pet.  436.  by  motion  to  quash.     A  naotion  to 

Cf.  May  V.   Parker,   29  Mass.  34 ;  set  aside  the  return    attacks  the 

Woodman  v.   Saltonstal,   7  Cush.  truth  of  the  facts  stated  in  the  re- 

183.  turn,   and  must  be  supported  by 

*  Edmiston  v.  Edmiston,  2  Ohio,  proof  aliunde ;  a  motion  to  quash 
251,  per  curiam.  the  service  attacks  the  sufficiency 

*  Powers  V.  Ames,  9  Minn.  178.        of  the  return,  admitting  it  to  be 
»  Swan  V.  Iron  Co.,  58  Ga.   199.     true. 

The  return  of  process  may  be  at-  ■*  Harrington  v.  Heath,  15  Ohio, 
tacked  by  motion  to  set  aside,  or    483  ;  Fee  v.  Iron  Co.,  13  O.  S.  563. 


277  DEMURRERS.  §293 

submission  of  the  person  to  its  jurisdiction. ^  But  appearance 
for  the  sole  purpose  of  questioning  the  jurisdiction  of  the 
peisoii  is  not  a  submission  of  the  person  to  the  jurisdiction.^ 

Demurrer  for  want  of  jurisdiction  may  be  in  this  form : 
Defendant  demurs  to  the  complaint,  for  the  reason  that  the 
court  has  not  jurisdiction  of  the  person  of  the  defendant. 
[Or,  of  the  subject-matter  of  the  action  ;  or,  of  the  subject  of 
the  action.] 

293.  General  Demurrer— Insufflciency  of  Facts. — An- 
other ground  of  general  demurrer  to  the  complaint  is,  that  it 
does  not  state  facts  sufficient  to  constitute  a  cause  of  action. 
If  the  statement  of  the  complaint  does  not  show  a  remedial 
right  in  the  plaintiff,  against  the  defendant,  it  will  not 
authorize  the  interference  of  the  court,  and  is  fatally  defect- 
ive. A  demurrer  on  this  ground  questions  the  legal  suffi- 
ciency of  the  facts  stated,  and  asks  the  judgment  of  the  court 
thereon.  Generally,  therefore,  a  demurrer  on  this  ground 
presents  a  question  under  the  substantive  law — Do  the  facts 
as  stated,  and  the  law  as  it  is,  authorize  the  action  ?  For 
example,  in  an  action  for  breach  of  contract,  such  demurrer 
to  the  complaint  may  question  the  competency  of  the  parties 
to  the  contract,  the  sufficiency  of  the  consideration,  the 
legality  of  the  agreement,  the  performance  of  a  condition 
precedent,  the  privity  of  the  parties  to  the  action,  or  the 
breach  of  the  obligation ;  for  these  are,  by  the  substantive 
law,  essential  elements  of  a  remedial  right  founded  upon 
contract.  Demurrer  on  this  ground  lies  where  the  complaint 
omits  any  material  fact,^  where  it  fails  to  show  any  connec- 
tion between  the  facts  alleged  and  the  demurrant,^  or  where 
it  shows  that  the  right  of  action  has  not  yet  accrued.^  A 
complaint  is  not  demurrable  merely  because  the  action  is 
novel,  and  without  precedent.^ 

'  Handy  v.  Ins.  Co.,  37  O.  S.  36b.  677  ;  Am.  B.  H.  Co.  v.  Gurnee,  44 

'  Smith  V.  Hoover,  39  O.  S.  249.  Wis.  49. 

2  Harvester  Co.    v.    Bartley,    94  ^  Hicks  v.  Branton,  21  Ark.  186  ; 

Ind.  181 ;  Leak  v.  Comrs.,  64  N.  C.  Harvey  v.  Chilton,  11  Cal.  114. 

132.  6  Piper  v.  Hoard,  107  N.  Y.  73; 

*  Sinclair  V.  Fitch,  3  E.  D.  Smith,  Muldowney  v.   Ry.   Co.,   42  Hun, 

444  ;  23  Abb.  N.  C.  447,  in  nota. 


§  294  ORDERLY  PARTS  OF  PLEADING.  278 

It  is  tlie  rule  of  common  law,  that  where  several  plaintiffs 
allege  a  joint  right,  the  joint  right  must  be  proved  as  alleged ; 
and  if  not  so  proved,  the  action  must  fail  as  to  all  the  plaint- 
iffs. For  example,  if  A.  and  B.  sue  as  partners,  for  goods 
sold  and  delivered,  and  the  proof  should  show  that  A.  alone 
sold  and  delivered  the  goods,  and  that  B.  had  no  interest  in 
the  transaction,  A.  could  not  recover,  for  it  would  be  a  failure 
of  pioof.  Following  this  common-law  rule,  and  treating  the 
alleged  joint  character  of  the  right  as  essential  and  material, 
it  is  held  in  some  cases  that,  in  legal  actions,  though  not  in 
equity  suits,  where  two  or  more  plaintiffs  allege  a  joint  right, 
and  the  facts  stated  show  a  several  right  in  one  only,  or  a 
joint  right  in  part  only,  the  complaint  is  subject  to  demurrer 
for  want  of  sufficient  facts.^ 

294.  General  Demurrer — Insufficiency  of  Facts,  Con- 
tinued.— If  such  demurrer  be  interposed  to  an  entire  pleading 
containing  two  or  more  causes  or  defenses,  it  will  be  over- 
ruled if  the  pleading  be  found  to  contain  one  good  cause  or 
defense  ;  ^  for  the  demurrant  must  stand  upon  his  general 
proposition,   and  the  court  must  pass  upon  the  pleading  as 

'  Bartges  v.  O'Neil,  13  O.  S.  72 ;  Towell    v.    Pence,    47    Ind.    304 

Masters  v.  Freeman,  17  O.  S.  323 ;  Davidson  v.   King,   47    Ind.    372 

DeBolt  V.    Carter,    31    Ind.    355 ;  Wash.  Tp.  v.  Bouney,  45  Ind.  77 

Goodnight  v.   Goar,   30  Ind.   418 ;  Everett  v.  Waymire,  30  O.  S.  308 

Berkshire  v.  Schultz,  25  Ind.  523  ;  Nichol  v.  McAllister,  52  Ind.  586 

Lipperd  v.  Edwards,  39  Ind.  165 ;  Roberts  v.  Johannas,  41  Wis.  616 

Estabrook  v.  Messersmith,  18  Wis.  Shroyer  v,  Richmond,  16  O.  S.  455 

545;  Giraudv.  Beach,  3  E.  D.  Smith,  Ry.  Co.  v.  Hall,  26  O.  S.  310  ;  Dal 

337.      These  decisions    have    been  las  Co.  v.  Mackenzie,  94  U.  S.  660 

criticised,  and  their  autliority  ques-  Lowe  v.  Burke,  79  Ga.  164  ;    Ply- 

tioned,   on  the  ground  that  they  mouth  v.  Milner,  117  Ind.  324  ;  Ry, 

ignore    the     equitable     principles  Co.  v.  McLiney,  32  Mo.  App.    166  ; 

which  should  be  applied  to  the  civil  Hale  v.  Bank.  49  N.  Y.  626  :  Wright 

action  in  all  its  phases.     Pom.  Rem.  v.  Smith,  81  Va.  777  ;  Robrecht  v. 

213-215.      Cf.   Simar  v.   Canaday,  Marling,  29  W.  Va.  765  ;  Griffiths  v. 

53  N.  Y.  298;  Viles  v.  Bangs,  36  Henderson,  49  Cal.  566  ;  Holbertv. 

Wis.    131,    139,    140;  Tennant    v.  Ry.  Co.,  38  Iowa,  315;  Carson  v. 

Pfister,  51  Cal.  511.  Cook,  50  Tex.  325  ;  Strange  v.  Man- 


'  Ry.  Co.  v.  Vancant,40  Ind.  233 
McPhail  V.  Hyatt,  29  Iowa,  137 
Modlin  V.  N.  W.  T.  Co.,  48 Ind.  492 
Draining  Co.  v.  Brown,  47  Ind.  19 


ning,  99  N.  C.  165  ;  Newlon  v. 
Reitz,  31  W.  Va.  483  ;  Brake  v. 
Payne,  137  Ind.  479. 


279  DEMURRERS.  §294 

an  entirety,  and  can  not  overrule  tlie  demurrer  as  to  one  cause 
or  defense,  and  sustain  it  as  to  another.  And  for  the  same 
reason,  wliere  a  single  count  contains  two  or  more  causes  of 
action,  or  defenses,  a  demurrer  addressed  to  the  entire  count  or 
staLenient  should  be  overruled,  if  any  one  of  the  several  causes 
or  defenses  is  good.^  The  proper  practice  in  such  case  is,  to 
demur  severally  to  each  cause  or  defense,  and  if  they  are  com- 
mingled in  one  statement,  the  better  practice  is,  first  to  have 
them  separated,  by  motion  for  that  purpose.  It  has  been 
held  that  where  facts  constituting  but  a  single  right  of  action, 
or  a  single  defense,  have  been  improperly  divided,  and  stated 
and  numbered  as  two  or  more  separate  causes  of  action  or 
defenses,  a  general  demurrer  to  each  separate  statement 
should  be  overruled,  and  the  pleading  sustained  as  one 
entire  cause  of  action  or  defense,^  treating  the  words  and 
numerals  distinguishing  the  separate  statements  as  sur- 
plusage. 

A  party  may  demur  to  one  or  more  of  several  causes  or 
defenses,  and  answer  or  reply  to  the  others.  And  it  has 
been  held  that  where  several  causes  or  defenses  are  embodied 
in  one  statement,  a  demurrer  may  nevertheless  be  directed 
to  one,  if  that  one  may  be  distinctly  designated;  ^  for  a  sub- 
stantial remedy  ought  not  to  be  prevented  by  failure  to  ob- 

1  Newlon  v.  Reitz,  31  W.  Va.  483;  424  ;  and  the  overruling  of  separate 

Wright  V.  Smith,  81  Va.  777.  demurrers  to  the  several  causes  in 

'  Everett  v.   Waymire,  30  O.  S.  such  complaint  might  not  be  error 

308  ;  Hillman  v.  Hillman,  14  How.  to  the  prejudice  of  the   defendant. 

Pr.   456  ;   Weeks  v.    Cornwall,   39  Andrews  v.  Alcorn,  13  Kan.   351. 

Hun,  643,  644  ;  Norman  v.  Rogers,  But  when  such  separate  statements 

29  Ark.  365  ;  Valentine,  J.,  in  An-  are  demurred  to  severally,  the  mis- 

drews    v.    Alcorn,    13    Kan.    351.  taken   division    is  neither  waived 

Contra,   Mfg.    Co.   v.   Beecher,    26  nor  disregarded  ;    the    demurrant 

Hun,  49;  Catlin  v.  Pedrick,  17  Wis.  adopts  and  follows  his  adversary's 

88.     Tlie  soundness  of  the  former  division  of  facts  ;  and  it  is  a  well 

holdings  may  well  be  doubted.     It  settled  rule  that,  on  demurrer,  eacli 

is  true  that  the  separate  statement  separate    cause    or  defense   must 

of  distinct  causes  or  defenses   is  stand  or  fall  by  itself,  and  can  not 

matter  of  form  only  .and  may  there-  be  aided  by  another.     Bliss  PI.  121 ; 

fore  be  disregarded  whenimprop-  Pom.  Rem.  575. 

erly  made.     A  verdict  for  the  de-  '  Wiles  v.  Suydam,  64  N.  Y.  173  ; 

fendant  on  such  answer  would  cure  Wright  v.  Conner,  34  Iowa,  240. 
the  defect.  Shook  v.  Fulton,  4  Cow. 


§295        ORDERLY  PARTS  OF  PLEADING.  280 

serve  a  merely  formal  requirement,  and  a  party  should  not 
be  permitted  to  set  up  the  defective  form  of  his  pleading  to 
protect  it  from  a  demurrer  directed  against  its  substance. 
But  the  better  practice  is,  to  have  the  commingled  causes  or. 
defenses  first  separated,  upon  motion  for  that  purpose,  and 
then  to  demur.  It  has  been  seen  that  if  a  defense  pleaded 
jointly  is  bad  as  to  one,  it  is  bad  as  to  all  who  join  in  it.^  On 
the  same  principle,  if  two  or  more  join  in  a  demurrer,  and  it 
is  overruled  as  to  one,  it  will  be  overruled  as  to  all.^ 

A  demurrer  for  insufficiency  of  facts  may  be  in  this  form: 
Defendant  demurs  to  the  complaint,  for  the  reason  that  it 
does  not  state  facts  sufficient  to  constitute  a  cause  of  action. 
Or  this  is  sufficient,  generall}'- :  Defendant  demurs  to  the 
complaint. 

295.  General  Demurrer — Statute  of  Limitations. — At 
common  law,  a  party  may  avail  himself  of  the  bar  of  the 
statute  of  limitations  only  by  plea ;  in  equity,  by  plea  and 
by  demurrer.  In  a  few  states,  the  common-law  rule  obtains, 
and  the  statute  can  be  made  available  only  by  answer  ;  but 
with  these  few  exceptions,  the  equity  rule  has  been  adopted, 
and  when  a  pleading  asserting  a  demand  shows  affirmative- 
ly that  the  statutory  period  has  elapsed,  advantage  may  be 
taken  of  it  by  demurrer.  In  some  states,  the  demurrer  is 
required  to  be  special,  stating  specifically  the  ground  of  ob- 
jection ;  but  the  general  rule  is,  that  when  a  cause  of  action 
shows  upon  its  face  that  it  is  vulnerable  to  the  defense  of  the 
statute,  a  demurrer  thereto  on  the  ground  that  it  does  not 
state  facts  sufficient  to  constitute  a  cause  of  action,  properly 
presents  the  defense  of  the  statute.^     This  rule  is  well  es- 

1  Ante,  263.  »Sturges  v.  Burton,  8  O.  S.  215  ; 

«  McGonigal  v.   Colter,   32  Wis.  Combs  v.  Watson,   32  O.  S.  228  ; 

614;  Webster  v.  Tibbitts,  19  Wis.  Seymore  v.  Ry.  Co.,  44  O.  S.    12; 

438  ;  Holzman  v.  Hibben,  100  Ind.  Ilett  v.  Collins,  103  111.  74 ;  Biays 

338  :  Clark  v.  Lovering,  37  Minn.  v.  Roberts,  68  Md.  510  ;  Merriam  v. 

120 ;  Oakley  v.  Tugwell,  33  Hun,  Miller,   22  Neb.    218  :    Hudson  v. 

357  ;  Eldridge  v.  Bell,  12  How.  Pr.  Wheeler,  34  Tex.  356  ;  Hurley  v. 

547  ;  Dunn  v.  Gibson,  9  Neb.  513  ;  Cox,  9  Neb.  230  ;  Young  v.  Whitten- 

Walker    v.    Popper,   2  Utah,   96.  hall,  15  Kan.  579  ;  Burnesv.  Crane, 

f^'^ntra,  Crane  v.  Deming,  7  Conn.  1  Utah,  179 ;  Howell  v.  Howell,  15 

38?.  Wis.  55  ;  McArdle  v.  McArdle,  12 


281  DEMURRERS,  §295 

tablished  by  the  authority  of  precedent,  but  it  is  indefensible 
upon  principle.  The  statute  of  limitations  affects  the  remedy, 
but  not  the  right ;  the  liability  remains,  and  may  sometimes 
be  asserted  in  another  jurisdiction.  The  statute  does  not 
assert  itself,  and  does  not  affect  the  action,  unless  asserted 
by  the  defendant.  The  mere  lapse  of  time  does  not  affect  the 
legal  operation  of  the  facts  stated  ;  it  simply  enables  the  de- 
fendant, if  he  choose,  to  exercise  a  privilege,  and  to  thwart 
the  action.  If  the  complaint  states  a  cause  of  action  that  is, 
on  its  face,  subject  to  the  defense  of  the  statute,  and  is  not 
otherwise  faulty,  it  is  a  good  complaint ;  it  states  facts  suffi- 
cient to  constitute  a  cause  of  action,  and  will  support  a  judg- 
ment for  the  plaintiff. 

The  doctrine  of  the  rule  under  consideration  is,  then,  that 
before  the  demurrer  is  filed,  the  complaint  states  sufficient 
facts ;  but  upon  the  filing  of  a  demurrer,  questioning  only 
the  sufficiency  of  these  facts,  they  at  once  become  insuffi- 
cient. The  error  of  this  doctrine  is,  that  it  either  makes  the 
mere  lapse  of  time  vitiate  the  right  asserted,  which  is  beyond 
the  purpose  and  effect  of  the  statute  ;  or  it  makes  the  de- 
murrer operate  as  a  defense,  which  is  beyond  the  office  of  a 
demurrer.  If  it  be  said  that  a  cause  of  action,  on  its  face 
subject  to  the  bar  of  the  statute,  is  good  if  the  statute  is  not 
asserted,  because  the  statute  is  waived  by  not  asserting  it, 
then  we  have  the  anomaly  of  waiver  validating  that  which  is 
defective  in  substance. 

It  has  been  suggested,  and  within  a  jurisdiction  where  the 
bar  of  the  statute  is  not  a  ground  for  special  demurrer,  that 
"  the  better  practice  undoubtedly  is,  to  specifically  state  in 
the  demurrer  that  the  cause  of  action  is  barred."  ^  This  un- 
guarded suggestion  recognizes  the  unfitness  of  the  general 
demurrer  to  assert  the  statutory  bar,  and  illustrates  the  error 
of  the  doctrine  under  consideration.  Such  practice  would 
introduce  a  ground  of  demurrer  not  provided  in  the  statute  ; 
and  such  demurrer  might,  on  motion,  be  stricken  from  the 

Minn.  98.  Contra,  State  v.  Spencer,  i  Vore  v.  Woodford,  29  O.  S.  245, 

79  Mo.  314  ;  Hexter  v.   Clifford,  5  250  ;  Seymour  v.  Ry.  Co.,  44  O.  S. 

Col.  168  ;  Brown  v.  Martin,  25  Cal.  12. 
82  ;  Brennan  v.  Ford,  46  Cal.  7. 


g  296        ORDERLY  PARTS  OF  PLEADING.  282 

files  of  the  court  as  frivolous.^  Some  confusion  has  doubtless 
arisen  in  this  matter  by  regarding  lapse  of  time  as  the  thing 
that  bars  an  action.  It  is  not  the  lapse  of  time,  but  the  asser- 
tion thereof  hy  the  party  otherwise  liable^  that  bars  an  action.^ 

296.  Special  Demurrer — Want  of  Capacity  to  Sue. — 
A  ground  of  special  demurrer  to  the  complaint  is,  that  the 
plaintiff  has  not  legal  capacity  to  sue.  Such  incapacity  arises 
(1)  where  it  affirmatively  appears,  in  the  body  of  the  com- 
plaint, that  the  plaintiff  is  under  some  personal  disability, 
such  as  infancy,  lunacy,  or  coverture  ;  and  (2)  where  the 
plaintiff  is  an  artificial  person,  or  an'  association  of  persons,  or 
sues  in  a  representative  character,  and  the  right  to  sue  in 
such  relation  does  not  affirmatively  appear.  The  reason  for 
this  difference — that  in  one  case  demurrer  will  not  lie  unless 
incapacity  affirmatively  appear,  and  that  in  the  other  it  will 
lie  unless  capacity  affirmatively  appear — is,  that  where  the 
plaintiff  is  a  natural  person,  and  sues  as  an  individual,  his 
existence  and  his  capacity  to  sue  are  presumed,  and  no  state- 
ment thereof  is  needed  ;  but  where  the  plaintiff  sues  in  some 
other  capacity  or  relation,  there  is  no  such  presumption,  and 
qualifying  statements  are  necessary.^ 

Where  one  sues  in  any  representative  capacity, — such  as 
administrator,  executor,  guardian,  trustee,  receiver,  or  as- 
signee in  insolvency, — he  should  state  the  facts  which  legally 
operate  to  clothe  him  with  such  power.  In  an  action  by  a 
corporation,  its  corporate  existence  must,  subject  to  certain 
exceptions,  be  made  to  appear  by  proper  allegation  ;  and  in 
an  action  by  a  partnership,  the  names  of  the  partners  should 
be  stated  in  the  title,  and  the  fact  of  partnership  should  be 
alleged  in  the  statement  of  the  complaint.  Where  a  partner- 
ship sues  in  its  firm  name,  without  disclosing  the  names  of 
the  partners,  it  must,  by  proper  allegations,  bring  itself  cleai- 
ly  v/ithin  the  statute  authorizing  suits  in  such  name.  If  for 
want  of  qualifying  facts,  the  legal  capacity  of  the  plaintiff  to 
sue  does  not  appear,  a  demurrer  for  this  cause  will  lie.     The 

'  Ante,  279.  fense  is  more  fully  discussed  in  a 

*  The  nature  of  this  statutory  de-    subsequent  chapter.     Post,  336. 

» Ante,  177. 


283  DEMURRERS.  §  297 

requirements  of  the  complaint  in  this  regard  have  heretofore 
been  fully  stated,  with  illustrations  and  citations  of  autliori- 
ties,i  and  need  not  be  repeated  here. 

The  objection  that  the  plaintiff  has  not  capacity  to  sue  can 
be  raised  only  by  special  demurrer,  stating  this  specific 
ground  ;  it  can  not  arise  on  general  demurrer.^  If  the  in- 
capacity exists  in  fact,  but  does  not  appear  from  the  com- 
plaint, the  objection  must  be  taken  by  answer;  and  if  not 
made  by  demurrer  or  by  answer,  the  right  to  object  is 
waived.3  For  example,  if  an  infant  sue,  not  by  guardian  or 
next  friend,  and  the  defendant  does  not  object,  by  answer  or 
demurrer,  he  can  not  otherwise  object,  and  the  infant  may  re- 
cover judgment  in  the  action.^  And  the  same  is  true  where 
a  married  woman  sues  alone.^  Where  the  complaint  shows 
that  prior  to  the  bringing  of  the  action  the  plaintiff  had  as- 
signed the  claim  sued  on,  it  is  a  defect  that  relates  to  the 
plaintiff's  right  of  action,  and  not  to  his  capacity  to  sue,  and 
is  not  waived  by  failure  to  raise  the  objection  by  demurrer 
or  answer.^ 

Demurrer  on  this  ground  may  be  in  this  form :  Defend- 
ant demurs  to  the  complaint  for  the  reason  that  plaintiff  has 
not  legal  capacity  to  sue. 

297.  Special  Demurrer — Pendency  of  Another  Action. 
— That  there  is  another  action  pending  between  the  same 
parties,  for  the  same  cause,  is  ground  for  special  demurrer 
to  the  complaint,  if  it  appear  upon  the  face  thereof  ;  other- 
wise, the  remedy  is  by  answer.  To  make  the  pendency  of  a 
prior  action  a  ground  of  objection,  it  must  distinctly  appear 
that  the  parties  are  the  same,  and  that  the  same  right  of  action 
is  involved."  But  if  the  former  action  is  for  relief  not  obtain- 
able in  the  latter,  demurrer  will  not  lie  ;^  the  principle  being, 

'  Ante,  180.  ^  Hoffman v.Plummer,140.S.448. 

'  People  V.  Crooks,  53  N.  Y.  648  ;  *  Buckingham  v.  Buckingham,  36 

Ins.  Co.  V.  Baldwin,  37  N.  Y.  648  ;  O.  S.  68. 

Vibert  v.  Frost,  3  Abb.  Pr.  119.  •>  Bourland  v.  Nixon,  27  Ark.  315; 

3  Palmer  v.  Davis,  28  N.  Y.  242  ;  Dawson  v.  Vaughan,  43  Ind.   395  ; 

Bulkley  v.  Iron  Co.,   77  Mo.    105  ;  Sangster  v.  Butt,  17  Ind.  354. 

People  V.  Tel.   Co.,  31  Hun,   596;  ^Haire  v.    Baker,   5  N.  Y.  357. 

McNair  v.  Toler,  21  Minn.  175.  Cf.  Hatch  v,  Spofford,  22  Conn.  485. 

*  Jones  V.  Steele,  36  Mo.  324. 


g  298  ORDERLY  PARTS  OF  PLEADING.  284 

that  if  full  relief  can  be  had  in  the  one  action,  another  action 
would  be  vexatious,  and  may  not  be  maintained.  The  pend- 
ency of  a  prior  action  in  a  court  of  the  United  States,  or  of 
another  state,  is  not  ground  of  objection ;  the  creditor  may 
pursue  liis  debtor  in  different  jurisdictions,  but  is  entitled  to 
only  one  satisfaction.' 

If  the  pendency  of  another  action  is  not  taken  advantage 
of  by  demurrer  or  by  answer,  the  right  to  object  is  waived. ^ 
The  objection  can  not  be  raised  by  motion.^  Demurrer  on 
this  ground  may  be  in  the  form  following :  The  defendant 
demurs  to  the  complaint  for  the  reason  that  there  is  another 
action  pending  between  the  same  parties,  for  the  same  cause. 

298.  Special  Demurrer — Defect  of  Parties. — When  it 
appears  from  the  complaint  that  there  is  a  defect  of  parties, 
plaintiff  or  defendant,  the  defendant  may  demur.  Defect  of 
parties  means  a  deficiency,  not  an  excess.*  If  there  is  such 
defect,  not  apparent  from  the  complaint,  it  may  be  shown  by 
answer;  and  the  defect  is  waived,  if  not  taken  advantage  of 
by  demurrer  or  answer.^  To  warrant  a  demurrer  for  this 
cause,  it  must  appear  that  the  demurrant  has  an  interest  in 
having  the  omitted  party  joined,  or  that  he  is  prejudiced  by 
the  non-joinder.^     It  is  not  requisite  that  it  appear  from  the 


'  Burrows  v.  Miller,  5  How.  Pr.  ^  Lowry  v.  Harris,  12  Minn.  255 

51  ;  Cook  V.  Litchfield,  5  Sandf .  330;  Rowe  v.  Baccigalluppi,  21  Cal.  633 

Sloan  V.  McDowell,  75  N.  C.    29;  Tenor  v.    Ry.    Co.,   50    Cal.    222 

DeArmond  v.  Bohn,    12  Ind.    607  ;  Conklin  v.   Barton,  43  Barb.  435 

Bowne  v.  Joy,  9  Johns.  Rep.   221  ;  Albro  v.  Lawson,  17  Mon.  B.  642 

Walsh  V.  Durkin,  12  Johns.  Rep.  99.  Bouton  v.  Orr,  51  Iowa,  473  ;  Dreut 

^  Bishop  V.  Bishop,  7  Robt.  194  ;  zer    v.    Lawrence,   58    Wis.    594 

Ripley,  C.  J.,  in  Williams  v.  Mc-  Spencer  v.  Van  Cott,  2  Utah,  337 

Grade,  18  Minn.  88.  Ins.  Co.  v.  Gibson,   104  Ind.  336 

3  Hornf ager  V.  Homfager,  6  How.  Baldwin  v.   Canfield,  26  Minn.  43 

Pr.  279.  Featherson  v.  Norris,  7  S.  C.  472 

■»  Peabody  v.  Ins.  Co.,  20  Barb.  Tarbox  v.  Gorman,  31  Minn.   62 

339  ;  Bennett  v.   Preston,  17  Ind.  Zabriskie  v.  Smith.  13  N.  Y.  322. 

291  ;    Hill  V.  Marsh,  46  Ind.   218 ;  «  Newbould  v.  Warren,  14  Abb. 

Truesdell  v.  Rhodes,  26  Wis.  215  ;  Pr.   80 ;    Littell  v.    Sayre,  7  Hun, 

McKee   v.    Eaton,   26    Kan.   226  ;  485  ;  Stockwell  v.  Wager,  30  How. 

Lowry  v.  Jackson,  27  S.   C.  318  ;  Pr.  271  ;  Ry.   Co.  v.  Schuyler,  17 

Comp.  Co.  V.  Ins.  Co..  40  Wis.  373  ;  N.  Y.  592. 
Neil  V.  CoUege,  31  O.  S.  15. 


285  DEMURRERS.  g  299 

complaint  that  the  omitted  parties  are  living;  it  must  not 
appear  that  they  are  dead.^  As  a  general  rule,  if  the  con- 
troversy can  be  determined  without  prejudice  to  the  rights  of 
others,  or  by  saving  their  rights,  a  demurrer  for  non-joinder 
will  not  lie  ;  otherwise,  the  demurrer  will  be   sustained.^ 

In  an  action  for  trespass  upon  lands  held  in  common,  if  it 
appear  from  the  complaint  that  some  of  the  owners  are  not 
parties  to  the  action,  a  demurrer  for  non-joinder  will  lie.^ 
And  in  an  action  to  recover  damages  for  the  conversion  of  a 
chattel,  if  the  complaint  show  that  the  plaintiff  is  a  joint 
owner  with  others,  not  parties,  demurrer  will  lie.*  Wheie 
one  or  more  may  sue  or  defend  for  themselves  and  others,  on 
the  ground  of  common  interest,  that  the  parties  are  very 
numerous,  or  that  it  is  impracticable  to  bring  them  all  be- 
fore the  court,  a  demurrer  for  non-joinder  will  not  lie,  if  such 
reason  for  omission  appear  in  the  complaint.^ 

A  general  demurrer  will  not  raise  the  objection  of  non- 
joinder ;  it  should  be  specific,  and  should  state  whether  the 
defect  is  of  parties  plaintiff  or  of  parties  defendant.^  For  ex- 
ample :  The  defendant  demurs  to  the  complaint,  for  the 
reason  that  there  is  a  defect  of  parties  plaintiff.  Though  in 
some  cases  it  has  been  lield  that  such  demurrer  should  name 
or  point  out  the  omitted  person  or  persons.'^ 

299.  Special  Demurrer — Misjoinder  of  Causes. — It  is 
ground  for  special  demurrer  to  the  complaint,  that  several 
causes  of  action  are  improperly  joined.  The  codes  of  the 
several  states  provide  for  the  joinder  of  causes  of  action  ;  and 
the  general  rules  to  be  gathered  from  these  provisions  have 
heretofore  been  stated.^  When  causes  that  are  not  joinable 
are  united  in  one  complaint,  the  fault  is  misjoinder,  and  is 
remediable  by  demurrer,  if  it  appears   from   the   complaint 

1  Porter  v.  Fletcher,  25  Minn.  *  Getty  v.  Hudson,  etc.,  Co.,  8 
493.  How.    Pr.    177.      Cf.    Hulbert  v. 

*  Wallace  v.  Eaton,  5  How.  Pr.     Young,  13  How.  Pr.  413. 

99  ;  Snyder  v.  Voorhes,  7  Col.  296.  '  Baker  v.  Hawkins,  29  Wis.  576  ; 

3  Dupuy  V.  Strong,  37  N.  Y.  372.  Skinner  v.    Stewart,  13  Abb.   Pr. 

*  Maxwell  v.  Pratt,  24  Hun,  448.  442. 

*  Bronson  v.  Ins.  Co. ,  85  N.  C.  ^  Ante,  195  et  seq. 
411  ;  Hammond  v.   Hudson,  etc., 

Co.,  20  Barb.  378. 


§299  ORDERLY  PARTS  OF  PLEADING.  286 

itself ;  otherwise  the  remedy  is  by  answer.  Where  several 
causes  are  commingled  in  one  statement,  the  fault  is  dupli- 
city, and  is  remediable  by  motion  to  separately  state  and 
number.^  If  causes  not  properly  joinable  are  thus  commingled, 
the  defendant  may,  nevertheless,  demur  for  the  misjoinder ;  ^ 
though  the  better  practice  is,  first  to  have  the  confused  state- 
ment separated,  so  that  the  several  causes  may  distinctly  ap- 
pear, and  then  to  demur  for  the  misjoinder.  If  a  complaint 
contain  several  distinct  statements,  each  purporting  to  be  a 
separate  cause  of  action,  but  together  displaying  only  one 
right  of  action,  demurrer  for  misjoinder  will  not  lie.^  To 
make  misjoinder,  the  complaint  must  display  a  plurality  of 
distinct  rights  to  be  enforced,  or  a  plurality  of  distinct  wrongs 
to  be  redressed,  and  these  must  be  such  as  may  not,  under 
the  provisions  of  the  statute,  be  joined.*  If,  therefore,  a 
complaint  contains  two  counts,  of  kinds  not  joinable,  one  of 
which  states  a  right  of  action,  while  the  other  does  not,  there 
is  not  a  misjoinder.^  And  where  several  distinct  grounds  for 
the  same  recovery  are  stated,  the  complaint  is  not  demur- 
rable for  misjoinder ;  ^  nor  is  a  complaint  stating  a  single 
right  of  recovery,  based  on  one  or  the  other  of  two  grounds, 
separately  stated ;  "^  though  in  such  case,  the  complaint 
should  state  a  sufficient  reason  for  the  use  of  alternative  state- 
ments.^ Where  several  kinds  of  relief  are  asked  upon  one 
cause  of  action,  the  prayer,  though  part  of  the  complaint,  is 

1  Ante,  285,  286.  689  ;  WiUard  v.  Reas,  26  Wis.  540, 

«  Wiles  V.  Suydam,  64  N.  Y.  173  ;  544  ;  Newman  v.  Smith,  77  Cal.  22 

Wright  V.  Conner,  34  Iowa,  240  ;  Bedford  v.  Barnes,  45  Hun,   353 

Zorn  V.  Zorn,  38  Hun,  67  ;  Harris  v.  Jenkins  v.  Tliomason,  32  S.  C.  254 

Eldridge,  5  Abb.  N.  C.  278.  S.  M.  Co.  v.   Wray,   28  S.   C.   86 

^  Hillman  v.  Hillman,   14  How.  Hiles  v.  Johnson,  67  Wis.  517. 

Pr.  456  ;    Ward  v.  Ward,  5   Abb.  «  Williams  v.  Lowe,  4  Neb.  382 

Pr.  N.  S.  145  ;  Polley  v.  Wilkisson,  Thompson  v.  Minford,  11  How.  Pr. 

,5  Civ.  Proc.  135  ;  Everett  v.  Way-  273  ;  Walters  v.   Ins.   Co.,  5  Hun, 

mire,  30  O.  S.  308  ;  Tootle  v.  Wells,  343. 

39  Kan.  452 ;  Bass  v.  Comstock,  38  '  Everett  v.    Conklin,  90  N.   Y. 

N.  Y.  21.  645  ;  24  Abb.   N.  C.  326,  in  nota. 

*  Meyer  v.  Van  Collem,  28  Barb.  Cf.  Kewaunee  Co.  v.    Decker,  30 
230.  Wis.  624. 

*  Truesdell  v.    Rhodes,   26  Wis.  «  Ante,  207. 
215  ;  Bassett  v.  Warner,  23  Wis.  673, 


287  DEMURRERS.  §§300-301 

not  part  of  the  cause  of  action,  and  there  is  no  misjoinder. 
Matter  of  inducement,  matter  of  aggravation,  and  facts  to 
sliow  special  damages  are  collateral  facts,  and  constitute 
neitlier  duplicity  nor  misjoinder. 

300.  Special  Demurrer — Misjoinder  of  Causes,  Con- 
tinued.— Demurrer  for  misjoinder  is  not  available  where  the 
objection  is  that  the  court  has  not  jurisdiction  of  one  of 
several  causes  of  action  otherwise  joinable.  If,  for  example, 
the  subject  of  one  cause  is  lands  located  without  the  terri- 
torial jurisdiction  of  the  court,  and  the  subject  of  the  other  is 
within  the  jurisdiction,  the  remedy  is  a  general  demurrer  to 
the  one  cause  for  want  of  jurisdiction,  and  not  a  special  de- 
murrer for  misjoinder  of  causes.^ 

It  is  the  general  rule  of  practice,  that  when  a  misjoinder 
is  found,  upon  demurrer  or  upon  answer,  the  plaintiff  Avill 
be  required  to  elect  upon  which  cause  he  will  proceed;  or 
he  may  divide  the  action,  and  file  several  complaints.  Being 
a  defect  of  form,  misjoinder  is  waived  if  not  objected  to 
by  demurrer  or  by  answer.^  The  demurrer  should  be  specific, 
and  may  be  in  this  form  :  The  defendant  demurs  to  the  com- 
plaint, for  the  reason  that  several  causes  of  action  are  im- 
properly joined  therein. 

301.  Special  Demurrer — Misjoinder  of  Parties. — By 
misjoinder  of  parties  is  meant  an  excess  of  jjarties.  In  many 
states  this  is  not  a  ground  for  demurrer ;  in  some,  a  mis- 
joinder of  parties  plaintiff,  and  in  a  few,  misjoinder  of 
I)arties  plaintiff  or  defendant,  is  ground  for  special 
demurrer,  wliile  in  some  cases  it  has  been  held  that» 
iu  legal  actions,  if  several  plaintiffs  assert  a  joint  right, 
and  the  allegations  of  fact  show  a  several  right  in  one, 
or  a  joint  right  in  part  only,  the  complaint  is  subject  to^ 
general  demurrer  for  want  of  sufficient  facts.^  Where  mis- 
joinder of  parties  is  not  cause  for  demurrer,  it  has  been  held 
that  a  demurrer  for  want  of  sufficient  facts  as  to  supernum- 

1  Cook  V.   Chase,   3  Duer,   643  ;  McCarthy  v.  Garroghly,  10  O.  S. 

Dodge  V.  Colby,  108  N.  Y.  445.     For  438;  Cloon  v.   Ins.  Co.,  1  Handy, 

further  illustration  of  misjoinder,  32  ;    Marius   v.    Bicknell,     10    Cal. 

see  ante,  199  et  seq.  217  ;  James  v.  Wilder,  25  IMinn.  305» 

»  Berry  v.   Carter,  19  Kan.   135  ;  ^  Ante,  293. 


gg  302-303         ORDERLY  PARTS  OF  PLEADING.  288 

erarj  parties  is  proper ;  ^  and  if  the  misjoinder  is  not  appar- 
ent from  the  complaint,  it  may  be  shown  in  the  answer.^  In 
at  least  one  state,  misjoinder  is  regarded  as  mere  matter  of 
surplusage  ;  ^  and  the  weight  of  autliority  is  to  the  effect 
that  failure  to  object  by  demurrer  or  answer  is  a  waiver.* 

302.  Facts  Admitted  on  Demurrer. — It  is  commonly 
said  that  a  demurrer  admits  all  facts  that  are  well  pleaded.^ 
This  is  true  in  only  a  qualified  sense.  A  demurrer  questions 
•only  the  legal  sufficiency  of  the  pleading  demurred  to  ;  in 
determining  the  legal  effect  of  a  pleading,  only  such  matters 
therein  as  are  'legally  operative,  and  therefore  properly 
pleaded,  can  be  considered ;  and  these  matters  are,  for  the 
sole  purpose  of  determining  their  legal  sufficiency,  said  to  be 
admitted  by  the  demurrer.  Any  matters  pleaded  that  have 
no  legal  operation,  and  are  hence  not  proper  to  be  pleaded, 
are  neither  admitted  nor  denied ;  they  are  simply  not  involved 
in  the  consideration  of  the  demurrer.  In  this  sense,  a 
demurrer  admits  the  facts  proper  to  be  pleaded,  or  rather  it 
assumes  them  to  be  true,  for  the  purpose  only  of  determining 
the  legal  question  raised  by  the  demurrer.  There  is  no  ab- 
solute admission,  such  as  may  be  used  in  evidence  ;  the  ad- 
mission is  for  the  purpose  of  the  demurrer,  and  not  for  the 
purpose  of  the  action.  In  the  consideration  of  a  general  de- 
:murrer,  all  relevant  and  material  facts  stated  in  the  pleading 
•demurred  to  are  to  be  taken  and  considered  as  they  are 
•stated,  even  though  they  be  informally  alleged ;  but  imma- 
terial facts,  legal  conclusions,  facts  contrary  to  the  court's 
judicial  knowledge,  and  facts  which  the  party  pleading  is 
estopped  to  assert,  are  not  to  be  considered. 

303.  Demurrer  Searches  the  Record. — In  code  plead- 
ing, as  at  common  law,^  a  demurrer  to  an}'  pleading  after  the 
first,  involves  the  sufficiency,  in  matter  of  substance,  of  the 
prior  pleadings ;  and  the  court,  upon  consideration  of  such 

1  Palmer  v.  Davis,  28  N.  Y.  242  ;  «  Burns  v.  Ashworth,  72  N.  C, 
Rumsey  v.  Lake,  55  How.  Pr.  340  ;  496  ;  Green  v.  Green,  69  N.  C.  294. 
Richtmeyer  v.  Richtmeyer,  50  ''  Gillam  v.  Sigman,  29  Cal.  637 ; 
Barb.  55.  Long  v.  DeBevois,  31  Ark.  480. 

»  Canal  Co.  v.  Snow,  49  Cal.  155.        '  Ante,  83. 

•     «  Ante,  85. 


289  DEMURRERS.  §303 

demurrer,  will  examine  the  whole  record,  and  will  give  judg- 
ment against  him  who  filed  the  first  pleading  that  is  insuffi- 
cient in  substance.^  Formal  defects  in  prior  pleadings  are 
not  reached  by  demurrer  to  a  subsequent  pleading,  because 
these  are  waived  by  pleading  to  the  merits ;  ^  and  it  is  only 
a  general  demurrer  that  searches  the  record,  for  a  special 
demurrer  is  applicable  only  to  the  particular  defect  specified.^ 

Under  this  rule,  a  general  demurrer  to  an  answer  reaches 
a  complaint  that  shows  a  want  of  jurisdiction  of  the  subject- 
matter,  or  of  the  subject  of  the  action,  or  that  does  not  state 
facts  constituting  a  cause  of  action  ;  *  and  a  demurrer  to  a 
reply  will  reach  an  answer  that  is  insufficient  in  substance.^ 
And  a  demurrer  to  a  reply  to  a  cross-complaint,  or  a  counter- 
claim, reaches  the  pleading  so  replied  to.^  In  all  such  cases, 
the  demurrer  is  in  effect  carried  back,  and  sustained  as  a 
demurrer  to  such  former  defective  pleading^  But  a  demur- 
rer to  an  answer  in  abatement  will  not  reach  back  to  the 
complaint,^  for  such  answers  are  not  addressed  to  the  com- 
plaint. 

It  has  been  held  that  a  demurrer  to  an  answer  reaches 
a  defect  of  substance  in  the  complaint,  notwithstanding  a 
previous  demurrer  to  the  complaint  had  been  overruled.^ 
This  is  upon  the  ground  that  the  filing  of  an  answer  to  the 

•  Young  V.  Duhme  &  Co.,  4  Met.  v.  O'Donnell,  34  N.  J.  L.  408  ;  Peo- 

(Ky.)  239 ;  Martin  v.  McDonald,  14  pie  v.  Booth,  32  N.  Y.  397. 

Mon.  B.  544  ;  Bank  v.  Lockwood,  *  Stratton  v,  Allen,  7  Minn.  502 

16  Ind.  306 ;  Brown  v.  Tucker,   7  Lockwood  v.    Bigelow,    11   Minn. 

Colo.   30;    Trott    v.    Sarchett,    10  113;   Trott  v.   Sarchett,   10  O.   S, 

O.  S.  241  ;  People  v.  Booth,  32  N.  241  ;  Person  v.  Drew,  19  Wis.  225 

Y.   397  ;  Hunt  v.    Bridge   Co.,   11  Lawton  v.  Howe,  14  Wis.  241. 

Kan.  412,  433  ;  Scott  v.  State,  89  «*  Menifee  v.  Clark,  35  Ind.  304 

Ind.  368.  Brook  v.  Irvine,  41  Ind.  430. 

»  Aurora  City  v.  West,  7  WaU.  '  Hillier  v.  Stewart,  26  O.  S.  652 

S2.  1  Wilhite  v.    Hamrick,   92  Ind 

3  Stratton  v.  Allen,  7  Minn.  502  :  594  ;  Wood,  J.,  in  Headington  v, 

Hobbs  V.  Ry.  Co.,  12  Heisk.   526  ;  Neff,  7  Ohio,  229  ;  Okey,  J.,  in  Ry 

Bank  v.  Hendrickson,  40  N.  J.  L.  Co.  v.  Mowatt,  35  O.  S.  284. 

52;   McEwen  v.    Hussey,  23   Ind.  «  Price  v.  Ry.  Co.,  18  Ind.  137 

395  ;  Allen  v.  Crofoot,  7  Cow.  46  ;  Shaw  v.  Dutcher,  19  Wend.  216, 

Lipe  V.  Becker,  1  Den.  568  ;  Tubbs  »  Johnson  v.  Ry.  Co..  16  Fla.  623 

V.  Caswell,  8  Wend.  129 ;   Brehen  Cummins  v  Gray,  4  Stew.  &  Port. 

19  n'^r 


§  304        ORDERLY  PARTS  OF  PLEADING.  290 

merits  in  such  state  of  case  is  a  waiver  of  the  demurrer, 
which,  in  theory,  is  withdrawn  to  make  place  for  the  answer. 
Formerly,  the  demurrer  was  actually  withdrawn,  to  avoid 
tlie  entry  of  a  judgment  quod  recuperet  thereon. 

304.  Pleading  Over  Without  Demurrer. — All  formal 
defects  in  pleadings,  whether  such  as  may  be  corrected  on 
motion,  or  such  as  may  be  corrected  on  demurrer,  are  waived 
by  pleading  to  the  merits  ;  ^  but  where  a  pleading  is  defect- 
ive in  substance,  and  therefore  subject  to  a  general  demur- 
rer, tlie  defect  is  not  waived  by  pleading  over,  or  by  going 
to  trial  without  demurring,  unless  the  defect  be  cured  by 
pleading  subsequent  to  the  defect.^  A  demurrer  admits  the 
truth  of  all  facts  stated  that  are  proper  to  be  pleaded ;  but, 
e  cotiverso,  it  is  not  the  effect  of  a  pleading  of  fact  to  admit 
the  sufficiency  in  law  of  facts  adversely  alleged  in  a  prior 
pleading.  The  reason  is,  that  the  law  is  not  variable  ;  it 
is  not  to  be  pleaded,  and  it  is  not  to  be  affected  by  allega- 
tion. If  a  pleading  does  not  state  a  cause  of  action  or  a 
defense,  there  is  no  right  or  defei:kse  to  be  maintained  by  the 
proof ;  and  proof  without  allegation  does  not  avail.  It 
follows,  therefore,  that  where  a  pleading  is  insufficient  in 
substance,  the  opposite  party  ma}^  without  demurring,  gen- 
erally avail  himself  of  such  insufficiency.  He  may  do  thia 
in  various  ways,  such  as  by  objecting  to  the  introduction  of 
evidence  at  the  trial,^  by  motion  in  arrest  of  judgment,  by 
motion  for  judgment  non  obstante  veredicto,  or  by  writ  of 
?rror.  For  example,  suppose  a  plaintiff  alleges  that  defend- 
..nt  promised  to  make  him  a  gift  of  certain  property,  but  on 
demand  refused  to  deliver  it,  and  asks  judgment  for  its 
value;  and  suppose  the  defendant,  instead  of  demurring, 
answers  a  denial  of  the  alleged  promise.  The  defendant 
may,  upon  trial,  object  to  the  introduction  of  evidence,  and 
may  move  for  instructions  to  the  jury ;  he  may,  after  verdict 
against  him,  move  for  a  new  trial,  and  in  arrest  of  judgment ; 

1  Grove  v.  Kansas,  75  Mo.  672  ;  283  ;  Gray  v.  Ryle,  18  Jones  &  S. 

Sappington  v.  Ry.Co.,  14 Mo.  App.  198  ;  5  Civ.  Proc.  387. 

86 ;   School  Dist.   v.    Mclntire,   14  »  Brown  v.  Galena,  M.  &  S.  Co., 

Neb.  46,  50.  32  Kan.  528. 

«^-ople  V.   Ry.   Co.,  42  N.   Y. 


291  DEMURRERS.  §§305-306 

and  he  may  proceed  in  error.  It  must  be  borne  in  mind, 
however,  that  faults  in  pleading  are  sometimes  cured  by  the 
subsequent  pleadings,  and  they  are  sometimes  aided  by 
verdict.^ 

305.  Pleading  Over  Without  Demurrer,  Continued. — 
"Whether  a  party  shall  demur  or  plead  to  a  defective  pleading 
is  sometimes  a  question  of  expediency.  If  the  defect  be  one 
of  form,  it  may  be  cured  by  amendment,  if  pointed  out  by 
motion  or  demurrer  ;  and  very  often  it  may  as  well  be  waived 
by  pleading  over,  unless  some  advantage  is  to  be  gained  by 
the  delay  sometimes  incident  to  amendment.  If  the  defect 
be  one  of  substance,  it  is  well  to  consider  whether  it  is  a 
defect  that  is  inherent  in  the  case,  or  one  that  can  be  cured 
by  amendment.  If  it  be  a  defect  that  may  be  removed  by 
amendment,  it  may  sometimes  be  expedient  to  plead  over, 
and  to  raise  the  legal  objection  at  a  later  stage  of  the  case, 
rather  than  to  demur,  and  thus  take  the  hazard  of  enlighten- 
ing the  adversary,  and  enabling  him  to  fortify  his  case  by 
amendment.  On  the  other  hand,  the  proverbial  indulgence 
of  courts  in  the  way  of  amendments,  and  the  fact  that  costs 
are  allowed  on  the  sustaining  of  a  demurrer,  and  ma}"-  or  may 
not  be  allowed  if  the  objection  is  first  made  at  a  later  stage, 
are  matters  not  to  be  overlooked. 

It  must  be  borne  in  mind  in  this  connection  that  it  is  only 
where  the  pleading  is  wholly  insufficient  that  objection  to  it 
may  be  asserted  after  pleading  over.  Parties  are  required 
to  assert  all  objections  as  to  form  before  they  proceed  to 
trial ;  and  under  the  new  procedure,  contrary  to  the  common- 
law  rule,  every  reasonable  intendment  is  to  be  made  in  favor 
of  the  pleading. 

306.  Pleading  After  Demurrer  Overruled. — If  a  party 
file,  at  the  same  time,  both  a  demurrer  and  a  pleading  of  fact, 
addressed  to  the  same  cause  or  defense,  he  should  be  required 
to  elect  between  the  two  incongruous  issues  he  thereby  pre- 
sents ;  ^  and  where  a  party  has  filed  a  demurrer  to  a  pleading, 

'  Steph.  PI.  225.  man    v.    Weider,  5    How.  Pr.  5  ; 

•'  Canal  Co.  v.  Webb,  9  Ohio,  136  ;  Fisher  v.   Scholte,   30  Iowa,   221. 

Stocking  V.  Burnett,  10  Ohio,  137  ;  In  this  case  it  was  held  that  filing 

Davis  V.  Hines,  6  O.  S.  473  ;  Spell-  an  answer  with  a  demurrer  is  a 


,^5  307  ORDERLY  PARTS  OF  PLEADING.  292 

and  thereafter  pleads  thereto  before  his  demurrer  has  been 
ruled  upon,  he  waives  the  defect  demurred  to,  if  it  is  one 
that  may  be  waived,^ 

When  such  demurrer  has  been  erroneously  overruled,and  the 
demurrant  wishes  to  take  advantage  of  the  error,  he  must 
rest  upon  his  demurrer,  and  allow  final  judgment  to  be 
entered  against  him ;  for  if  he  pleads  to  the  insufficient 
pleading,  he  thereby  waives  all  objection  thereto,  except  for 
want  of  jurisdiction  of  the  subject  or  of  the  subject-matter, 
and  for  want  of  sufficient  facts.^ 

307.  Pleading  After  Demurrer  Overruled — Rationale 
of  the  Rule. — The  rule  stated  in  the  last  preceding  section 
is  upon  the  theory  that  the  subsequent  pleading  of  fact  in 
response  to  the  pleading  demurred  to  is,  by  implication,  an 
abandonment  and  withdrawal  of  the  demurrer,  which,  in  con- 
templation of  law,  ceases  thereafter  to  be  a  part  of  the  record. 
By  the  strict  rule  of  the  early  common  law,  if  defendant's 
demurrer  to  the  declaration  was  overruled,  the  case  stood 
with  the  facts  of  the  declaration  established,  and  judgment 
quod  recuperet  was  entered  thereon. ^  When,  in  later  time» 
the  courts  permitted  the  defendant,  on  leave  obtained,  to 
plead  to  the  declaration  after  his  demurrer  thereto  had  been 
overruled,  he  was  required  to  withdraw  his  demurrer,  and 

waiver  of  the  demurrer  and  of  any  29  ;  Dupuis  v.  Tliompson,  16  Fla. 

ruling  thereon  ;  following  the  rule  69  ;  Johnson  v.  Ry.  Co.  16  Fla.  623  ; 

in  the  English  Chancery  practice.  Ward  v.  Moorey,  1  Wash.  Ter.  104  ; 

1  Gordon  V.  Culbertson,  51  Ind.  People  v.  Ry.  Co.,  42  N.  Y.    283; 

334  ;  Morrison  v.  FLshell,  64  Ind.  Pittman  v.  Myrick,  16  Fla.    692  ; 

117  ;  Moss  V.  Printing  Co.,  64  Ind.  Farrar  v.  Triplett,  7  Neb.  237  ;  Freas 

125 ;  Calvin  v.  State,  12  O.  S.  60  ;  v.  Englebrecht,  3  Col.   377 ;  Stan- 

Vose  V.  Woodford,  29  O.  S.  245 ;  bury  v.   Kerr,   6  Col.  28  ;    Harral 

Pierce  v.  Minturn,  1  Cal.  470.  v.    Gray,  10  Neb.  186  ;  O'Donohue 

"  Pottinger  v.  Garrison,  3  Neb.  v.  Hendrix,   13  Neb.  255 ;    Fuggle 

221 ;  Mitchell  v.  McCabe,  10  Ohio,  v.  Hobbs,  42  Mo.  537  ;   Board  Ed. 

405  ;  Richards  v.  Fanning,  5  Oreg.  v.  Hackmann,  48  Mo.   243  ;  Meyer 

356  ;  Westphal  v.  Henney,  49  Iowa,  v.  Binkleman,  5  Col.  262  ;   Tennant 

542;  Smith  V.Warren  Co.,  49  Iowa,  v.  Pfister,  45  Cal.  270;   Pickering 

336;  Hagely  v.    Hagely,   68    Cal.  v.  Tel.  Co.,  47  Mo.  457  ;   Birchard, 

348;  Young  v.    Martin,    8   Wall.  J.,  in  Watson  v.  Brown,  14   Ohio, 

354;  Walker  v.  Kynett,  32  Iowa,  473.     Cf.   Kitchen  v.  Loudenback, 

524  ;  Finley  v.    Brown,   22  Iowa,  48  O.  S.  177. 

538  ;  United  States  v.  Boyd,  5  How.  »  Ante,  86. 


4i^  TO,     /^c^   /ol  ^  /^  .,/^3^ 


293  DEMURRERS.  §308 

the  case  was  treated  thereafter  as  if  no  demurrer  had  been 
filed.  Judgment  on  the  demurrer  was  thereby  avoided,  and 
the  demurrer  did  not  become  a  part  of  the  record.  In  modern 
practice,  while  the  record  shows  the  demurrer  and  the  over- 
ruling thereof,  it  is,  in  legal  contemplation,  and  practically, 
though  not  formally,  abandoned  and  withdrawn  ;  and  a  de- 
fendant who  pleads  to  the  merits  after  his  demurrer  to  the 
complaint  has  been  overruled  can  not,  with  the  exceptions 
aforesaid,  again  avail  himself  of  the  same  ground  of  objection 
to  the  complaint,  by  objection  to  evidence  on  the  trial,  by 
motion  in  arrest  of  judgment,  or  by  assignment  of  error.  In 
other  words,  he  must  elect  to  stand  upon  his  demurrer  and 
decline  to  plead  further,  or  to  abandon  the  ground  of  de- 
murrer and  rely  upon  his  issue  in  fact. 

308.  Amending  After  Demurrer  Sustained. — It  lias 
been  held,  generally,  that  if  a  party  amend  his  pleading, 
after  a  demurrer  thereto  has  been  erroneously  sustained,  he 
waives  the  error.^  This  certainly  is  so,  if  by  the  amendment 
he  abandons  the  original  claim  or  defense.*  But  it  has  well 
been  suggested,  that  if  a  party  is  thus  driven  to  the  necessity 
of  amending  an  already  sufficient  pleading,  and  inserting 
therein  needless  allegations  ;  and  if  his  proof  should  sustain 
the  necessary  original  averments,  but  should  fail  as  to  the 
needless  averments  brought  in  by  the  amendment ;  it  would 
hardly  be  held  that  he  had  waived  his  objection  to  the 
erroneous  ruling  of  the  court  upon  the  demurrer.^ 

iHurd  V.    Smith,   5    Col.   233;    Ayres  v.   Campbell,  3  Iowa,   582. 
Perkins  v.    Davis,   2    Mont.   474  ;     Cf.  Evans  v.  Gee,  11  Pet.  80. 
Pottenger  v.  Garrison,  3  Neb.  222  ;        *  Bank  v.  Street,  16  O.  S.  1. 

3  Bliss  PI.  417  ;  Max.  PI.  380. 


ec 


^uO,   (0{,     I  0    '^      lOi,    ^c(.. 


CHAPTER   XXI. 

AMENDMENTS. 

309.  Origin  and  Nature  of  Amendments. — An  amend- 
ment is  the  correction  of  some  error  or  defect  in  the  pleadings, 
process,  or  proceedings  in  a  cause,  made  for  the  furtherance 
of  justice.  When  the  parties  made  their  allegations  ore  tenus^ 
in  open  court,  they  were  allowed,  by  the  judges,  during  this 
oral  altercation,  to  correct  and  adjust  their  statements,  and 
were  not  held  strictly  to  their  statements  as  originally  made.^ 
This  indulgence  has  been  continued,  with  some  modifications 
and  restrictions,  to  the  present  day.  After  the  introduction 
of  written  pleadings,  and  when  there  was  a  tendency  in  the 
common-law  courts  to  determine  causes  upon  matters  of  mere 
form,  amendments  were  provided  for  by  a  series  of  enact- 
ments, called  statutes  of  amendment  and  jeofails,  whereby  any 
slip  or  error  in  matters  of  form  might  be  amended  by  the 
pleader,  or  overlooked  by  the  court. 

The  general  doctrine  of  the  common  law  is,  that,  inde- 
pendently of  statute,  the  power  is  inherent  in  the  court  to 
allow  amendments  at  any  time  before  judgment,  and  even 
after  judgment  and  during  the  term  at  which  judgment  is 
entered ;  for  until  the  term  is  ended,  the  proceedings  are  in 
fieri,  and  subject  to  the  control  of  the  court.  Amendments, 
however,  being  in  furtherance  of  justice,  are  always  to  be 
limited  by  due  consideration  of  the  rights  of  the  opposite 
party ;  and  where  he  would  be  prejudiced,  or  exposed  to 
unreasonable  delay,  by  the  amendment,  it  should  not  be 
allowed. 

310.  Nature  of  Amendments,  Continued. — An  amend- 
ment that  is  a  substitute  for  the  original  pleading  is  an  aban- 
donment of  the  original,  and  only  the  amended  pleading  can 

1  Steph.  PI.  107. 
294 


295  AMENDMENTS.  §311 

thereafter  be  considered  by  the  court ;  ^  though  any  admis- 
sions in  the  abandoned  pleading  may  be  used  as  evidence 
against  the  party .^  But  an  amendment  to  a  pleading,  one 
that  is  in  terms  only  an  addition  thereto,  does  not  dispense 
with  the  original  pleading,  but  is  to  be  taken  and  considered 
in  connection  therewith. 

The  amendment  of  a  complaint,  if  it  amounts  to  a  restate- 
ment of  the  original  cause  of  action,  relates  back  to  the  com- 
mencement of  the  action ;  so  that  an  amended  complaint  is 
regarded  as  stating  the  right  of  action  as  it  existed  when  the 
suit  was  commenced.^  It  has  been  held  that  by  amendment 
of  the  complaint,  a  right  of  action  not  included  in  the  original 
may  be  saved  from  the  bar  of  the  statute  of  limitations.*  But 
upon  principle,  as  well  as  by  the  weight  of  authority,  when 
a  complaint  is  amended  by  inserting  a  new  cause  of  action, 
the  action  is  not  commenced  as  to  such  new  cause  until  the 
amended  complaint  is  filed ;  ^  nor  is  there  lis  pendens  as  to 
such  new  cause,  before  the  amendment. 

An  exhibit  attached  to  an  original  pleading  must  be 
attached  to  an  amendment  that  supersedes  the  original.^ 

311.  Amendments  Under  the  Reformed  Procedure. — 
The  several  codes  make  ample  provision  for  the  amendment 
of  pleadings,  to  the  end  that  actions  may  not  be  defeated  on 
grounds  that  do  not  affect  the  merits  of  the  controversy.'^ 
These  provisions  vary  in  some  respects,  but  their  substantial 
features  are  almost  identical  in  the  several  codes.  Amend- 
ments under  the  new  procedure  may  be  divided  into  two 
general  classes — (1)  those   made   of   right,   and  (2)    those 

1  Washer  v.   BulUtt  Co.,  110  U.  Brown  v.    mn.  Co.,  32  Kan.  528; 

S.  558,  561  ;  State  v.  Simpkins,  77  Blake  v.  Minkner,  136  Ind.  418. 
Iowa,  676  ;   Sands    v.  Calkins,   30        *  Ward  v.  Kalbfleisch,  21  How. 

How.  Pr.  1 ;  Dunlap  v.  Robinson,  Pr.  283.     Contra,   Blake  v.   Mink- 

12    O.    S.    530 ;    Barber    v.    Rey-  ner,  136  Ind.  418. 
nolds,  33  Cal.  497.  ^  Anderson    v.    Mayers,   50  Cal. 

'  Iron  Co.   V.    Harper,   41   O.  S.  525 ;  Jeffers  v.  Cook,  58  Cal.  147  ; 

100;   ROTHROCK,   J.,   in  State    v.  Sheldon  v.  Adams,  18  Abb.  Pr.  405; 

Simpkins,  77  Iowa,  676.  Blake  v.  Minkner,  136  Ind.  418. 

3  Worley  v.  Moore,  97  Ind.  15  ;        «  Holdridge  v.  Svreet.  23  In.l.  118; 

Ryan   v,    Rv.   Co.,   21    Kan.    365;  McEwen  v.  Hussey,  23  Ind.  395. 

•>  Gould  V.  Stafford.  \f'\  C.-\.  r.'^. 


§312  ORDERLY  PARTS  OF  PLEADING.  296 

made  only  upon  leave  of  the  court.  The  plaintiff  may, 
without  leave,  amend  his  complaint  at  any  time  before 
answer  is  filed ;  but  must  serve  notice  thereof  on  the  defend- 
ant, who  shall  have  the  same  time  to  answer  or  demur  there- 
to as  to  the  original.  Within  a  specified  time,  generally  ten 
days,  after  demurrer  is  filed,  the  defective  pleading  may  be 
amended  without  leave,  on  payment  of  costs  since  the  filing 
thereof,  and  notice  to  the  demurrant.  The  right  to  amend 
without  leave  can,  it  seems,  be  exercised  but  once  as  to  the 
same  pleading.^ 

When  a  demurrer  is  overruled,  the  demurrant  may  answer 
or  reply,  if  the  court  is  satisfied  that  he  has  a  meritorious 
claim  or  defense,  and  that  he  did  not  demur  for  delay ;  and 
when  a  demurrer  is  sustained,  the  adverse  party  may  amend, 
if  the  defect  can  be  remedied  by  amendment.  But  the  right 
to  plead  or  to  amend  after  a  ruling  upon  the  demurrer,  being 
conditioned  as  aforesaid,  can  be  exercised  only  upon  leave  of 
the  court,  based  upon  a  finding,  express  or  implied,  that  the 
condition  exists.  If,  therefore,  a  complaint  be  adjudged  in- 
sufficient on  demurrer,  and  no  leave  to  amend  be  asked,  final 
judgment  for  costs  may  be  entered  against  the  plaintiff.^ 

312.  Amendments  Under  the  Codes,  Continued. — The 
court  may,  before  or  after  judgment,  in  furtherance  of 
justice,  and  on  such  terms  as  may  be  proper,  amend  any  plead- 
ing, process,  or  proceeding,  by  adding  or  striking  out  the 
name  of  any  party,  or  by  correcting  a  mistake  in  the  name  of 
a  party,  or  a  mistake  in  any  other  respect,  or  by  inserting 
other  allegations  material  to  the  case  ;  or,  when  the  amend- 
ment will  not  change  substantially  the  claim  or  defense,  by 
conforming  the  pleading  or  proceeding  to  the  facts  proved ; 
and  when  an  action  or  proceeding  fails  to  conform  to  the 
provisions  of  the  particular  code,  the  court  may  generally 
permit  the  same  to  be  made  conformable  thereto  by  amend- 
ment. And  the  court  must,  in  every  stage  of  an  action,  dis- 
regard any  error  or  defect  in  the  pleadings  or  proceedings 
that  does  not  affect  the  substantial  rights  of  either  party. 

1  Sands  v.  Calkins,  30  How.  Pr.        «  Devoss  v.  Gray,  22  O.  S.  159. 
1 ;  White  v.  Mayor,  14   How.  Pr. 
495. 


297  AMENDMENTS.  §313 

When  there  is  a  variance  between  the  allegations  of  a 
party  and  his  proofs  upon  the  trial,  if  the  disagreement  is 
not  material,  and  so  has  not  misled  the  adverse  party,  the 
court  may  order  the  facts  to  be  found  according  to  tlie  evi- 
dence, and  may  direct  an  amendment  of  the  pleadings 
without  costs  ;  if  it  be  made  to  appear  to  the  court  that  the 
disagreement  has  misled  the  adverse  party,  to  his  prejudice, 
the  variance  is  to  be  deemed  material,  and  the  court 
may  order  an  amendment,  and  impose  such  terms  as  are 
just ;  but  when  the  disagreement  amounts  to  a  failure  oi 
proof,  the  variance  is  fatal,  and  is  not  remediable  by  amend- 
ment. 

The  allowing  and  refusing  of  amendments,  excepting 
those  that  may  be  made  without  leave,  rests  in  the  sound 
discretion  of  the  court ;  and  the  exercise  of  this  discretion 
will  not  be  reviewed  on  error,  unless  there  has  been  manifest 
abuse  of  the  discretion,  appearing  from  the  record.^  If  a  court 
has  not  jurisdiction  before  an  amendment,  it  has  none  to 
allow  the  amendment.^ 

When  either  party  amends  his  pleading,  the  adverse  party 
has  a  right,  ipso  facto,  to  amend  his  pleading  in  response 
thereto  •  ^  and  when  the  court  is  satisfl.ed,  by  affidavit  or  other- 
wise, that  in  consequence  of  an  amendment  the  adverse  party 
can  not  be  ready  for  trial  at  the  time  fixed,  the  trial  may  be 
postponed,  or  the  cause  continued  to  another  term. 

313.  What  May  be  Done  by  Amendment. — Where  a 
pleading  is  to  be  amended  by  striking  out  or  by  inserting  ian 
allegation,  it  should  be  done  by  tiling  a  new  pleading,  or  a 
statement  of  the  amendment,  designating  the  matter  to  be 
inserted  or  to  be  taken  out,  and  not  by  mutilating  the  paper 

1  Clark  V.   Clark,   20  O.  S.  128 ;  Finley,   18  S.   C.   305  ;  Harney  v. 

Brock  V.  Bateman,  25  O.  S.  609  ;  Corcoran,  60  Cal.  314  ;  Bowles  v. 

Hedges   v.    Roach,    16  Neb.    673;  Doble,    11    Oreg.    474;     Gould  v. 

White  V,   Culver,    10  Minn.    192  ;  Rumsey,  21  How.  Pr.  97  ;  Dennis  v. 

Dyer  V.  McPhee,  6  Colo.  174  ;  Butler  Snell,   54  Barb.   411;     Stanton  v. 

V.  Paine,  8  Minn.  324 ;  Ry.  Co.   v.  Kenrick,  135  Ind.  382. 

Finney,   10  Wis.   388  ;     Gillett  v.  2  Denton  v.  Danbury,  48  Conn. 

Robins,  13  Wis.  319;  Gilchrist  v.  368. 

Kitchen,   86  N.   C.  20  ;    Henry  v.  »  GiU  v.  Young,  88  N,  C.  58. 
Cannon,  86  N.  C.  24  ;   Trumbo  v. 


§  313  ORDERLY  PARTS  OF  PLEADING.  298 

on  file;  ^  though  where  there  is  plainly  a  mere  orthographical 
or  clerical  error,  sncli  as  the  use  of  a  wrong  date,  or  a  wrong 
name  or  word,  it  is  tlie  prevailing  practice  either  to  disregard 
such  mere  oversight,  or  with  the  consent  of  the  court,  to 
correct  it  by  erasure  and  interlineation.^ 

The  weight  of  authority  is  to  the  effect  that  a  party  may 
not,  by  amendment  of  his  pleading  before  trial,  change  the 
nature  and  scope  of  his  action  or  defense  ;  for  this  would  not 
be  an  amendment  of  the  original  cause  or  defense,  but  the 
substitution  of  another  therefor.*^  In  an  action  to  recover 
damages  for  flowing  plaintiff's  lands,  he  may  not,  by  amend- 
ment of  his  complaint,  charge  the  defendant,  under  the 
statute,  for  appropriating  the  land.*  But  in  such  action,  an 
amendment  claiming  damages  for  injury  to  the  crops  on  the 
land  is  permissible,^  because  it  only  enlarges  the  scope  of 
recovery  upon  the  same  act  declared  on  in  the  original 
complaint,  and  does  not  set  up  a  new  cause  of  action.  And 
in  an  action  for  legal  relief,  an  amendment  asking  for  equi- 
table relief  also,  both  demands  being  based  upon  the  facts 
originally  stated,  does  not  change  the  original  ground  of  the 
action,  and  is  allowable.^  On  appeal,  the  appellate  court 
may  not  allow  another  cause  of  action,  not  within  the 
jurisdiction  of  the  lower  court,  to  be  substituted  by  amend- 
ment, unless  by  consent  of  all  parties.  An  appeal  confers  on 
the  appellate  court  jurisdiction  of  only  the  right  of  action 
asserted  in  the  lower  court.*^ 


1  Hill  V,  Supervisor,  10  O.  S.  621.  Contra,  Robinson  v.  Willoughby, 

Cf.  Schneider  v.  Hosier,  21  O.  S.  67  N.  C.  84  ;  Mason  v.  Whitely,  4 

98.  Duer,  611  ;  Deyo  v.  Morss,  144  N. 

'^  Fitzpatrick  v.  Gebhart,  7  Kan.  Y.  216.     Cf.   Reeder  v.   Sayre,  70 

35.  N.    Y.    180;    Brown  v.  Leigh,   49 

•'  Supervisors  v.  Decker,   34  Wis.  N.  Y.  78. 

.378 ;  Ilutledge  V.  Vanmeter,  8  Bush.  "•  Newton  v.  AUis,  12  Wis.  378. 

3")1 ;  Ramirez  V.  Murray,  5  Cal.  222;  ^  Ry_  Co.  v.  Pape,  73  Tex.  501. 

Scovill  V.    Glassner,   79  Mo.    449  ;  «  Getty  v.  Ry.  Co.,   6  How.  Pr. 

McKeighan  v.  Hopkins,  19  Neb.  33;  269. 

Sweet  V.  Mitchell,    15    Wis.    641  ;  •"  VanDyke  v.  Rule,  49  O.  S.  530, 

Stevens  v.    Brooks,   23  Wis.   196  ;  535.     Cf.  Deyo  v.  Morss,  144  N.  Y. 

Givens  v.  Wheeler,   5  Colo.  598  ;  216. 
Givens  v.   Wheeler,    6  Colo.    149. 


299  AMENDMENTS.  §§314-315 

314.  What  Done  by  Amendment,  Continued. — A  plaint- 
iff may  not,  by  amendment  before  trial,  change  his  action 
from  one  in  tort  to  one  in  contract,  or  vice  versa.^  Perhaps 
the  weight  of  authority  is  in  favor  of  the  right  of  a  plaintiff, 
on  leave  obtained,  to  change  a  purely  legal  cause  into  an 
equitable  cause. ^  Such  leave  has  generally  been  given  upon 
the  trial,  to  conform  the  pleadings  to  the  evidence  ;  but  never, 
except  when  justice  and  fairness  require  it.  A  plaintiff  may, 
of  right,  amend  his  complaint  by  striking  out  a  cause  of 
action  ;  ^  and  a  new  cause  of  action  or  defense,  not  inconsist- 
ent with  the  original,  may  be  added  by  amendment.^  But 
facts  occurring  subsequent  to  the  commencement  of  the  action 
can  not  be  set  up  by  amendment  ;  these  can  be  brought  into 
the  record  only  by  supplemental  pleading.^  Making  new 
parties,  in  invitum,  should  be  by  amendment.  The  prayer 
for  relief  may  be  amended,  for  the  prayer  is  not  a  part  of  the 
cause  of  action,  and  a  change  of  the  former  does  not  affect 
the  latter.^  In  an  action  for  breach  of  promise  made  when 
the  defendant  was  an  infant,  the  plaintiff  may  amend  by 
alleging  ratification  after  lie  attained  his  majority.^ 

315.  What  Done  by  Amendment,  Continued. — Courts, 
in  the  exercise  of  their  discretion,  will  not,  as  a  rule,  give 
leave  to  assert,  by  amendment,  what  are  called  unconscion- 
able defenses,  such  as  the  statute  of  limitations,  or  usury.® 

'  Supervisors  v.  Decker,  34  Wis.  Tex.    74  ;    McLane  v.   Paschal,  63 

378  ;   Lumpkin  v.  Collier,   69  Mo.  Tex.  102  ;  Tiernan  v.  Woodruff.  5 

170  ;    Ramirez  v.    Murray,   5  Cal.  McLean,  135.     Cf.  Brown  v.  Leigh, 

222  ;  Hackett  v.  Bank,  57  Cal.  335  ;  49  N.  Y.  78. 

Lane  v.  Beam,  19  Barb.  51.  *  Van  Maren  v.  Johnson,  15  Cal. 

^  Beck  V.  Allison,  56  N.  Y.  366  ;  308 ;  McCaslan  v.  Latimer,  17  S.  C. 

Robinson  v.  Willoughby,  67  N.  C.  133;  Lampson  v.  McQueen,  15  How. 

84  ;  NeweU  v.  Newell,  14  Kan.  202  ;  Pr.  345. 

Barnes  v.   Ins.  Co.,  75   Iowa,    11;  «  Getty  v.  Ry.   Co.,  6  How.  Pr. 

Escli  V.  Ins.  Co.,  78  Iowa,  334.     Cf.  269 :  Reed  v.  Mayor,  97  N.  Y.  630. 

Carmichael    v.    Argard,    52    Wis.  '  Schreckengast  v.  Ealy,  16  Neb. 

607  ;  Kavanaugh  v.  O'Neill,  53  Wis.  510. 

101 ;  Gray  v.  Brown,  15  How.  Pr.  «  Sheets  v.  Baldwin's  Admr.    13 

555.  Ohio,  120;  Newsom'sAdm.  V.  Ran, 

3  Watson  V.  Bushmore,  15  Abb.  18   Ohio,    240  ;  Beach  v.    Bank,   3 

Pr.  51.  Wend.   574;  Jackson  v.  Varick,  2 

*  McQueen  v.  Babcock,  22  How.  Wend.  294 ;  Plumer  v.  Clarke,  59 

Pr.    229;  Williams  v.    Randon,  10  Wis.  646;    Sagory  v.  Ry.   Co.,  21 


§316  ORDERLY  PARTS  OF  PLEADING.  300 

Though  there  is  a  tendency,  in  some  of  the  courts,  to  recede 
from  this  attitude  toward  such  defenses,  especially  where 
there  lus  been  accidental  default,^  or  where  the  defense 
is  to  be  used  as  an  instrument  of  justice,  and  not  of 
strategy. 

At  the  trial,  pleadings  may,  on  leave  obtained,  be  amended 
to  conform  to  the  evidence,  where  there  is  a  mere  variance, 
and  not  a  failure  of  proof.  Where  an  action  is  on  a  contract, 
or  on  a  certificate  of  indebtedness,  an  amendment  alleging 
that  the  debt  is  due  for  services  has  been  allowed  at  the  trial,^ 
being  a  change  in  the  form  of  stating  the  right,  rather  than  a 
change  of  the  claim.  So  an  amendment  simply  increasing 
the  amount  claimed  ;  ^  or  alleging  special  damages  ;  *  or  ask- 
ing damages  instead  of  specific  performance,^  has  in  like 
manner  been  allowed  at  the  trial.  But  such  amendment 
should  not  be  allowed  to  change  a  cause  of  action  from  one 
foi-  equitable  relief,  to  one  in  ejectment ;  nor  from  a  charge 
of  fraud,  to  a  demand  on  contract ;  ^  nor  from  an  action  of 
trover  and  conversion,  to  one  for  fraud  and  deceit;'^  nor 
from  a  claim  of  ownership,  to  an  alleged  lien,^  for  the  claim 
of  title  is  a  waiver  of  any  lien ;  nor  from  an  action  on  the 
case,  to  one  on  an  express  contract ;  ^  and  where  a  complaint 
for  conversion  contains  an  allegation  waiving  the  tort,  an 
amendment  striking  out  the  waiver  should  not  be  allowed  on 
the  ti-ial.io 

316.  Amendments  After  Trial. — After  trial,  amendments 

How.  Pr.  455  ;  Coit  v.  Skinner,  7  ilton  v.  Ry.  Co.,  13  Abb.  Pr.  N.  S. 

Cow.   401  ;    Wolcott  v.    Farlan,   6  318. 

Hill,  227.  ■»  Miller  v.  Garling,  12  How.  Pr. 

1  Barnett  v.  Meyer,  10  Hun,  109  ;  203  ;  demons  v.   Davis,  6  Thomp. 

Gilchrist  V.  Gilchrist,  44  How.  Pr.  &  C.  523  ;  Baldwin  v.  Nav,  Co.,  4 

317 ;  Bank  v.  Bassett,  3  Abb.  Pr.  Daly,  314. 

N.  S.  359.     Cf.  Gourlay  v.  Hutton,  '  Beck  v.  AUison,  56  N.  Y.  366. 

10  Wend.  .595.  «  People  v.    Dennison,  84  N.  Y. 

'  Turnow  v.  Hochstadter,  7  Hun,  272. 

80  ;  Steamship  Co.  v.  Otis,  27  Hun,  ■>  Parker  v.  Rodes,  79  Mo.  88. 

452  ;  Woolsey  v.  Trustees,  4  Abb.  «  Hudson  v.  Swan,  83  N.  Y.  553. 

Ct.  App.  639.  9  Storrs  v.  Flint,  14  Jones  «fe  S. 

3  Dakin  v.  Ins.  Co.,  13  Hun,  122  ;  498. 

Knapp  V.   Roche,  62  N.   Y.   614  ;  "  Cushman  v.  Jewell,  7  Hun,  535. 
Raleigh  V.  Cook,  60  Tex.  438  ;  Ham- 


301  AMENDMENTS.  §317 

are  spariugly  and  cautiously  allowed  ;  and  never,  where  the 
amendment  will  bring  upon  the  record  matters  not  involved 
in  the  trial.  In  an  action  on  a  void  contract,  the  complaint 
may  be  so  amended,  after  trial,  as  to  claim  on  a  quantum 
meruit  ;  ^  and  a  vague  and  indefinite  answer  may  be  so  amended 
as  to  conform  to  the  proof ;  ^  and  even  after  verdict  and  judg- 
ment, a  defective  prayer  may  be  amended.^  But  a  complaint 
can  not  be  amended  after  trial  by  increasing  the  amount  of 
damages  claimed,  except  upon  the  granting  of  a  new  trial  ;* 
nor  can  it  be  amended  in  any  way  that  will  change  the  nature 
of  the  action.^ 

317.  Supplemental  Pleadings. — The  pleadings,  original 
and  amended,  are  confined  to  facts  existing  at  the  commence- 
ment of  the  action.  New  facts  relevant  to  the  action,  and 
material  to  the  right  or  to  the  defense,  may  arise  after  the 
suit  is  begun  ;  and  in  order  that  the  parties  may  have  the 
benefit  of  such  new  facts,  and  that  the  court  may  render  its 
judgment  upon  the  facts  as  they  exist  at  the  time  of  rendi- 
tion, it  is  provided  that  parties  may  be  allowed,  on  such  terms 
as  to  notice  and  costs  as  the  court  may  prescribe,  to  file  a 
supplemental  complaint,  answer,  or  reply  alleging  material 
facts  which  occur  subsequent  to  the  commencement  of  the 
action.  This  is  the  only  way  to  bring  upon  the  record  facts 
"which  occur  pending  the  suit.  Such  facts  can  not,  of  right, 
be  stated  in  an  original  answer  or  reply,  and  they  can  not  be 
incorporated  into  an  original  pleading  by  amendment,  because 
amendments,  like  original  pleadings,  can  embrace  only  facts 
existing  at  the  time  the  action  is  begun.  A  sup^^lemental 
pleading  is  not,  like  pleas  puis  darrein  continuance,  a  substi- 
tute for  the  original  pleading ;  it  is  merely  an  addendum, 
and  must  therefore  be  consistent  with,  and  in  aid  of,  the 
original  pleading ;  ^  though  in  some  instances  a  supplemental 


'  Thomas  v.  Hatch,  53  Wis.  296. ) ^Decker  v.   Parsons,  11   Hun,  295  ; 
»  Trippe  v.  DuVal,   33  Ark.  811.       Bowman  v.  Earle,  3  Duer,  691. 

*  Draper  v.  Moore,  2  Cin.  Rep.  *  Andrews  v.  Bond,  16  Barb.  633  ; 
167;  Johnson,  J.,  in  Culver  v.  Nosserv.  Corwin,36  How.  Pr.  540; 
Rogers,  33  O.  S.  537.  Walter  v.  Bennett,  16  N.  Y.  250. 

*  Pilaris  V.   Gere,  31   Hun,  443  ;        •  Tiffany  v.    Bowerman,  2  Hun^ 


§318        ORDERLY  PARTS  OF  PLEADING.  '^{j-^ 

answer  may  be  solely  relied  upon,  and  it  may  sometimes  be 
proper  to  file  an  amended  and  supplemental  pleading. 

A  new  and  independent  right  of  action  can  not  be  asserted 
by  a  supplemental  complaint ;  ^  and  if  the  original  complaint 
does  not  state  a  right  of  action,  its  defects  can  not  be 
remedied  by  a  supplemental  pleading,^  for  supplemental 
pleadings  do  not  relate  back,  like  amendments,  to  the  com- 
mencement of  the  action.  But  supplemental  facts,  if  they 
further  develop  the  original  right  of  action,  or  extend  or  vary 
the  relief,  are  available  by  way  of  supplemental  complaint^ 
and  in  aid  of  the  original  complaint,  even  though  they  are  such 
facts  as  would,  by  themselves,  constitute  a  right  of  action.^ 

318.  Supplemental  Pleadings,  Continued. — In  replevin 
for  sheep,  a  supplemental  complaint  may  ask  damages  for 
increase  in  lambs,  and  for  wool  shorn,*  these  being  in  the 
nature  of  special  damages  ;  a  supplemental  complaint  may 
allege  the  further  circulation  of  the  libel  complained  of ;  * 
and  if,  pending  suit,  a  third  person  assume  the  liability  of  the 
defendant  in  respect  to  the  matter  in  litigation,  he  may  be 
made  a  party  by  supplemental  complaint.  ^ 

In  an  action  for  divorce,  a  supplemental  answer  may  allege 
the  plaintiff's  adultery  pending  suit ;  "^  and  settlement  after 
action  brought  may  be  so  pleaded  ;  ^  and  so  may  payment,  or 


643  ;  Slauson  v.  Englehart,  34  Barb,  after    the    commencement  of  the 

198;    Buchanan  v.    Comstock,   57  action,  and  stated  in  a  supplemental 

Barb.  582  ;  Sutliff,  J. ,  in  Gibbon  complaint.      2   Bisli.  on  Mar.   and 

V.  Dougherty,  10  O.  S.  365.      Cf.  Divorce,  319. 
Eckert  v.  Binkley,  134  Ind.  614.  *  Buckley  v.    Buckley,  12    Nev. 

'  Tiffany  v.  Bowerman,  2  Hun,  423. 
643  ;  Moon  v.  Johnson,  14  S.  C.  434.        »  Corbin  v.  Knapp,  5  Hun,  197. 

>  Lowry  v.  Harris,  12  Minn.  255  ;        «  Prouty  v.  Ry.  Co.,  85  N.  Y.  272. 

Smith  V.  Smith,  22  Kan.  699  ;  Mul-  Cf.  Ervin  v.  Ry.  Co  ,  28  Hun,  269. 
ler  V.    Earle,   5  Jones  &  S.   388  ;        '  Strong  v.  Strong,  3  Robt.  669, 

Bostvvick  V.  Meuck,  4  Daly,  68.    Cf.  719  ;  Burdell  v.    Burdell,   3  How. 

Ervin  V.  Ry.  Co.,  28  Hun,  269.        '  Pr.  216.     Public  policy  forbids  that 

'  Latham  v.   Richards,  15  Hun,  the  marriage  relation  shall  be  judi- 

129  ;  Haddow  v.  Lundy,  59  N.  Y.  cially  dissolved,  if,  at  the  time  of 

320.     In  some  actions  for  divorce,  trial,  there  is  in  fact  any  valid  rea- 

the  plaintiff  has  been  allowed  to  son  for  withholding  such  decree, 
rely  entirely  upon  grounds  arising        '  Christy  v.  Perkins,  6  Daly,  237. 


[}0'd  AMENDMENTS.  §319 

release,  pending  suit,^  or  any  agreement  affecting  the  action. ^ 
If  the  defendant  acquire  title  to  property  in  dispute,  pending 
the  action,  he  must,  to  avail  himself  of  it,  plead  it  by  supple- 
mental answer.^  Additional  installments  of  an  obligation, 
falling  due  pending  the  action,  can  not  be  recovered  therein 
without  amendment  or  supplemental  pleading.*  But  in  an 
action  to  enforce  a  lien  securing  a  series  of  notes,  if  the 
original  complaint  shows  that  the  lien  secures  the  notes 
yet  to  mature,  and  that  the  action  is  for  a  remedy  on  all 
notes  maturing  before  final  decree,  neither  amended  nor 
supplemental  pleading  is  requisite.^ 

The  riglit  to  object  to  a  supplemental  complaint  on  the 
ground  that  it  seeks  to  maintain  the  action  upon  facts  occur- 
ring subsequent  to  the  filing  of  the  original  complaint  is 
waived  if  the  defendant,  without  objecting,  pleads  to  the 
merits  and  goes  to  trial .^ 

319.  Supplemental  Pleadings,  Continued. — In  a  very 
few  of  the  codes,  supplemental  pleadings  are  allowed  to  in- 
clude newly  discovered  facts  ;  that  is,  facts  that  existed  at 
the  commencement  of  the  action,  but  were  not  known  to  th-e 
party  at  the  time  of  filing  his  original  pleading.  This  is 
a  violation  of  the  true  theory  of  supplemental  pleading. 
Newly  discovered,  but  pre-existent,  facts  go  to  the  party's 
original  right,  and  should  be  incorporated  into  the  original 
pleading  by  amendment  thereof. 

Supplemental  pleadings,  like  most  amendments,  can  be 
filed  only  on  leave  of  the  court ;  but  since,  without  leave, 
there  is  neither  opportunity  nor  right  to  plead  supplemental 
facts,  the  leave  to  plead  such  facts,  when  they  are  both  rele- 
vant and  material,  is  a  matter  of  right,  and  should  always  be 
given,  unless  the  right  has  been  forfeited  by  laches,  or  there 

'  Matthews  v.  Mfg.  Co.,  3  Robt.  *  Bank  v.  East  Chester,  44  Hun, 

711 ;  Mitchell  v.  Allen,  25  Hun,  543  ;  537.      Cf.  Hamlin  v.  Race,  78  111* 

Jessup  V.  King,  4  Cal.  331.  422. 

2  Hasbrouck  v.  Shuster,  4  Barb.  ^  "Whiting    v.    Eichelberger,    16 

285.  Iowa,  422.     Cf.  Holly  v.  Graff,  29, 

»  Kahn  v.  Min.  Co.,  2  Utah,  174  ;  Hun,  443. 

Moss  V.  Shear,  30  Cal.  467  ;  McMinn  «  Pinch  v.  Anthony,  10  Allen,  470. 
V.  O'Connor,  27  Cal.  246. 


g310        ORDERLY  PARTS  OF  PLEADING.  a04: 

is  other  good  reason  to  withhold  it.  It  follows,  that  the  dis- 
cretion of  the  court  in  allowing  or  refusing  supplemental 
pleadings  is  a  sound  judicial  discretion,  and  not  an  arbitrary 
sic  volo  ;  and  it  is  error  to  refuse  the  leave,  unless  the  refusal 
rests  upon  reasonable  and  just  grounds.^ 

If  new  facts,  proper  for  a  supplemental  pleading,  are 
asserted  in  an  original  pleading,  or  in  an  amendment  thereof^ 
and  the  adversary  party  responds  thereto,  or  goes  to  trial,, 
without  objecting,  the  right  to  object  is  waived.^  And  if  a 
paper  styled  "  Supplemental  Complaint "  contain  allegations 
proper  only  in  an  amended  complaint,  it  is  within  the  discre- 
tion of  the  court  to  treat  it  as  an  amendment.^  It  is  not  the 
name  that  gives  force  to  a  pleading,  but  its  averments  ;  in 
fact,  it  is  a  general  rule,  that  the  character  of  a  pleading  is 
to  be  determined  from  its  averments,  and  not  from  the  name 
given  to  it. 

An  amended  or  supplemental  pleading,  filed  on  leave, 
need  not  aver  the  leave  of  the  court ;  this  will  otherwise 
appear  of  record. 

1  Holyoke  v.  Adams,  59  N.  Y.  281  ;  Pinch  v.  Anthony,  10  Allen, 
233  ;  FOLGER,  J.,  in  Spear  v.  Mayor,     470,  477. 

72  N.  Y.  442.  »  Cincinnati  v.  Cameron,  33  O.  S. 

2  Howard  v.  Johnston,  82  N.  Y.     386. 
271  ;  Puffer  v.  Lucas,  101  N.  C. 


PART  IV. 
GENERAL  RULES  OF  STATEMENT. 

320.  Scope  and  Divisions  of  This  Part. — Having  set 
forth,  in  Part  III.,  the  formal  parts  of  pleading  under  the 
Reformed  Procedure,  and  explained  their  structure,  and 
their  adaptation  and  use  as  instruments  for  tlie  application 
of  the  substantive  law  to  operative  facts,  we  come  now, 
according  to  the  order  of  treatment  proposed,  to  a  consider- 
ation of  the  general  rules  to  be  observed  in  the  use  of  the 
formal  pleadings  in  a  cause. 

The  entire  law  of  pleading  has  been  constructed  in  an 
effort  to  place  questions  for  judicial  determination  properly 
and  clearly  before  the  tribunal  that  is  to  investigate  and 
decide  them.  The  use  of  the  formal  pleadings  as  means  for 
the  presentation  of  such  questions  is  governed  by  a  system 
of  rules,  drawn  from  the  nature  of  legal  rights  and  duties 
and  the  established  laws  of  argument,  and  designed  to  pro- 
mote the  judicial  inquiry,  by  the  separation  of  complex 
questions  into  simple  points,  and  by  the  avoidance  of  ob- 
scurity, prolixity,  and  confusion.  These  rules  are  in  no 
degree  arbitrary ;  they  result  from  a  judicious  adaptation  of 
the  general  laws  of  argument,  to  the  judicial  altercation. 

The  ultimate  object  of  an  action  is,  to  procure  the  inter- 
position of  the  court,  as  the  depositary  of  the  public  force, 
for  the  maintenance  of  a  legal  right.  The  formal  pleadings, 
both  the  regular  and  the  irregular  parts,  are  but  means 
(1)  for  advising  the  court  that  there  is  occasion  for  judicial 
interposition,  (2)  to  disclose  and  formulate  any  resulting 
contention,  and  (3)  to  determine  the  nature  and  scope  of  the 
trial.  The  first  of  these  purposes  involves  matter  of  sub- 
stance ;  the  second  involves  matter  of  form  ;  and  tlie  third 

relates  to  the  proofs.     Following  this  natural  order,  the  gen^ 
20  305 


^  320  GENERAL  RULES  OF  STATEMENT.  306 

eral  rules  of  statement — those  guiding  principles  applicable 
to  pleadings  in  general — will  be  grouped  and  explained  under 
these  heads :  (1)  Rules  Relating  to  Matters  of  Substance ; 
(2)  Rules  Relating  to  Matters  of  Form  ;  and  (3)  Rules  Relat- 
ing to  the  Proofs. 


CHAPTER  XXII. 

RULES  RELATING  TO  MATTERS  OF  SUBSTANCE. 

321.  Matter  of  Substance. — It  is  essential  to  every 
pleading  asserting  new  matter,  wliether  in  tlie  statement  of 
a  right  of  action  or  of  a  defense,  tliat  it  contain,  either  by 
averment  or  by  legal  presumption  dispensing  with  averment, 
every  substantive  fact  requisite  in  law  to  the  maintenance  of 
the  action  or  the  defense.  All  such  facts,  essential  to  the 
right  or  the  defense  asserted,  are  matters  of  substance  ;  and 
if  any  such  fact  be  omitted,  the  claim  or  defense  is  defective, 
and  such  defect  can  not  be  supplied  by  evidence  at  the  trial. 
On  the  other  hand,  an  averment  not  requisite  to  the  claim  or 
defense  in  connection  with  which  it  is  made  is  always  a  need- 
less incumbrance,  and  may  be  misleading  and  vicious  ;  for 
which  reasons,  the  law  prohibits  the  insertion  of  such  aver- 
ments. 

Following  this  principle  of  discrimination,  the  rules  of 
statement  concerning  matters  of  substance  relate  either  to 
matters  that  should  be  stated,  or  to  matters  that  should  be 
excluded  ;  the  former  having  regard  to  the  legal  sufficiency 
of  pleadings,  the  latter  being  designed  to  restrict  the  aver- 
ments to  matters  legally  requisite. 

I.   OF   IVIATTERS   TO   BE   STATED. 

322.  General  Requisites  of  Complaint. — The  com- 
plaint must  contain  a  statement  of  operative  facts  which, 
tinder  the  substantive  law,  entitle  the  plaintiff  to  judicial 
interposition  in  his  behalf  and  against  the  defendant.  In 
other  words,  it  must,  by  a  statement  of  operative  facts,  dis- 
play a  right  of  action  against  the  defendant,  and  in  favor  of 
the  plaintiff.     Ordinarily,  a  statement  of  investitive    facts 

showing  the  plaintiff's  primary  right  and  the  defendant's 

307 


§  323       GENERAL  RULES  OF  STATEMENT.         308 

corresponding  duty,  and  of  culpatory  facts  showing  the  de- 
lict of  defendant,  is  all  that  is  requisite  to  show  a  right  of 
action ;  but  when  collateral  facts  are  necessary  to  give  effect 
to  the  substantive  facts,  they  should  be  stated  also.  In 
addition  to  a  statement  of  facts,  both  principal  and  collateral, 
showing  a  right  of  action,  the  complaint  must  show,  by  alle- 
gations, unless  dispensed  with  by  legal  inference,  that  the 
court  has  jurisdiction,  and  that  the  parties  have  legal  capacity 
to  sue  and  to  be  sued. 

These  general  requisites  of  a  complaint  are  matters  of  sub- 
stance, and  are  essential  to  the  jurisdiction  of  the  court,  and 
the  validity  of  its  procedure.  They  are  fully  considered  in 
a  former  chapter,^  and  need  not  be  further  considered  here. 
It  has  also  been  shown  that  in  some  cases  it  is  necessary  only 
to  state  the  facts  showing  the  defendant's  delict ;  that  causes 
for  equitable  relief  may  require  a  fuller  statement  than  those 
for  purely  legal  relief ;  and  that  matter  of  inducement  and 
matter  of  aggravation  may  be  pleaded  with  less  particularity 
than  is  requisite  in  stating  that  which  is  the  gist  of  the  claim 
or  defense.  But  there  are  some  essentials  of  a  complaint, 
requisite  only  in  particular  instances,  that  are  yet  to  be  stated 
and  explained.  Some  of  these,  it  will  be  found,  fall  within 
the  general  requirements  heretofore  enumerated,  while  others 
are  auxiliary  tliereto. 

323.  The  Complaint  Must  Show  Title.— It  is  a  rule  of 
pleading  under  the  Reformed  Procedure,  as  it  was  at  com- 
mon law,  that  where  the  plaintiff  asserts  a  demand  by  virtue 
of  his  ownership  of  property,  real  or  personal,  he  must  allege 
his  title  thereto;  and  if  he  charges  the  defendant  with  a 
liability  in  respect  of  property,  he  must  allege  title  in  his 
adversary.  In  other  words,  the  plaintiff  must  allege  such 
title  as  will,  in  law,  sustain  the  right  asserted,  or  the  liabil- 
ity charged. 

In  actions  concerning  real  property,  the  requirements  as  to 
alleging  title  differ  in  the  different  actions.  In  actions  for 
the  recovery  of  real  property,  where  the  pleadings  are  not 
controlled   by   special   statutory   provisions,   the   complaint 

1  Ante,  177  et  seq. 


309  MATTERS  OF  SUBSTANCE.  §324 

should  state  the  facts  that  give  the  i:>laintiff  a  right  of  posses- 
sion ;  to  wit,  that  he  is  the  owner  in  fee,  or  of  some  other 
estate  that  gives  him  right  of  possession.  But  in  most  of 
the  states,  the  pleadings  in  such  actions  are  regulated  by 
statutes  prescribing  the  requisite  averments.  That  plaintiffs 
are  the  "  owners  in  fee,  as  tenants  in  common,  of  tlie  prem- 
ises," has  been  held  sufficient.^  But  an  allegation  that  by 
virtue  of  a  certain  conveyance  to  plaintiff  he  became  the 
owner  of  certain  premises,  is  a  conclusion  of  law.^ 

In  trespass  quare  clausum  f regit,  the  gist  of  the  action  be- 
ing the  injury  to  the  possession,^  the  complaint  must  allege 
plaintiff's  possession,  actual  or  constructive,  at  the  time  of 
the  trespass.  It  has  been  held,  however,  that  where  no  one 
holds  actual  possession,  an  allegation  of  legal  title  in  the 
plaintiff  is  sufficient  in  such  case,  because  the  legal  title 
draws  after  it  the  possession ;  *  but  upon  principle,  owner- 
ship can  show  only  a  right  of  possession,  and  not  the  fact  of 
possession.  It  is  only  in  the  absence  of  actual  possession, 
that  the  title  draws  to  it  the  possession ;  and  this  is  by  a 
mere  legal  fiction.^  There  can  not  be  constructive  possession 
of  lands  of  which  third  parties  are  in  actual  adverse  posses- 
sion.^ 

324.  Complaint  Must  Show  Title,  Continued. — In  an 
action  by  a  lessor  against  his  lessee,  or  one  who  is  privy  to 
him,  founded  upon  the  lease,  the  complaint  need  not  allege 
title  in  the  plaintiff.  This  rule  is  a  consequent  of  the  famil- 
iar doctrine  that  a  lessee,  and  his  privies,  are  estopped  from 
disputing  the  landlord's  title.  And  where  the  action  is  be- 
tween the  lessor  and  the  lessee,  for  breach  of  any  of  the 
conditions  of  the  lease,  the  rule  rests  upon  the  additional 
ground  that  the  action  is  upon  the  contract  alone,  and  does 
not  involve  the  title.  But  when  the  action  is  brought  by  the 
assignee  of  the  reversion,  or  by  the  heir  of  the  lessor,  or  by  the 
executor  of  a  termor,  the  complaint  should  state  the  title  of 
the  lessor  to  the  demised  premises,  so  that  it  may  appear  that 

1  Payne  v.  Treadwell,  16  Cal.  220.        *  Ruggles  v.  Sand,  40  Mich.  559. 

■^  Turner  v.  White,  73  Cal.  299.  6  cf.  ante,  101. 

•^  Ante.  101.  «  Ruggles  V.  Sand,  40  Mich.  559. 


§325  GENERAL  RULES  OF  STATEMENT.  3i0 

the  lessor  had  such  estate  as  would  legally  entitle  the  plaint- 
iff to  maintain  the  action  in  the  capacity  in  which  he  sues.* 
The  reason  for  this  distinction  is,  that  the  tenant,  while  es- 
topped to  deny  his  landlord's  title,  is  not  estopped  to  question 
the  derivative  title  of  the  plaintiff ;  *  and  the  title  of  the 
lessor  is  the  source  and  substance  of  the  plaintiff's  derivative 
title.  In  this  connection  it  may  be  stated,  that  where  one 
claims  as  heir  of  another,  he  must  state  the  facts  of  exclusive 
near  relationship ;  the  mere  statement  that  he  is  such  heir  is 
a  conclusion  of  law.^ 

In  the  common-law  action  of  ejectment,  the  declaratiou 
alleges  a  demise  from  the  plaintiff's  lessor.*  This  is  a  literal 
compliance  with  the  rule  under  consideration;  and,  besides, 
this  title  is  expressly  admitted  by  the  real  defendant,  when 
substituted  for  the  casual  ejector.  But  the  real  title  of  the 
real  plaintiff  is  not  alleged  ;  and  this  is  because  of  the  ficti- 
tious character  of  the  action. 

In  an  action  for  partition,  the  complaint  should  state  the 
titles  and  interests  of  the  co-tenants,  plaintiff  and  defendant ; 
but  it  is  neither  necessary  nor  proper  to  show  any  deraign- 
ment  of  the  plaintiff's  title. 

In  an  action  to  remove  a  cloud  and  quiet  title,  it  is  gener- 
ally necessary  to  allege  both  the  legal  title  and  possession  in 
the  plaintiff. 

325.  Complaint  Must  Show  Title,  Continued. — In  ac- 
tions concerning  personal  property,  it  is  sufi&cient  to  allege 
simply  that  "  the  plaintiff  is  the  owner  "  of  certain  goods  and 
chattels,  describing  them  ;  ^  or  to  say  that  they  are  the  prop- 
erty "of  the  plaintiff."^  At  common  law,  ownership  of 
personal  property,  except  in  trover,  was  alleged  by  following 
a  description  of  the  property  with  the  words,  "of  the  said 
plaintiff."  In  trover,  the  formal  allegation  was,  that  the 
plaintiff  "  was  lawfully  possessed,  as  of  his  own  property,  of 


1  Max.  PI.  89  ;  Bliss  PI.  228  ;  Evans  ^  Souter  v.  Magiiire,  78  CaL  543  ; 
PI.  3L  Phoenix  Ins.  Co.  v.  Stark,  120  Ind. 

2  Big.  on  Estop.  536-538.  444  ;    Strickland    v.  Fitzgerald,  7 
8  Post,  343.  Cash.  532. 

♦  Ante,  91.  •  Pattison  v.  Adams,  7  Hill,  126. 


an  MATTERS  OF  bUBSTANCE.  8325 

certain  goods  and  chattels,"  describing  them.*  The  reason 
for  tliis  difference  iii  phraseology  was,  that  in  trover  the 
plaintiff  must  have  a  property,  general  or  special,  in  the 
cliattels ;  while  in  other  actions,  actual  possession,  or  con- 
structive possession  with  a  general  or  special  property,  was 
sufficient/'* 

In  actions  on  choses  in  action,  if  the  complaint  shows  title 
in  another, — as  where  plaintiff  sues  as  the  assignee  of  an 
account,  or  of  a  contract, — an  allegation  of  ownership  in  the 
plaintiff  is  not  enough,  but  the  transfer  must  be  alleged ; 
otherwise,  the  title  and  the  right  of  recovery  will  appear  not 
to  be  in  tlie  plaintiff,  but  in  another,  and  the  complaint  will 
be  demurrable.^  And  in  actions  on  negotiable  instruments, 
where  the  plaintiff  is  not  an  original  party  to  the  instrument, 
the  complaint  must  state  the  facts  showing  his  derivative 
title  thereto.  The  averment  in  such  case,  depending,  of 
course,  upon  the  negotiable  form  of  the  instrument,  may  be, 
that  the  payee  indorsed,  or  assigned,  or  delivered,  the  instru- 
ment to  the  plaintiff.  The  statement  that  the  note,  "  for 
value  received,  lawfully  came  to  the  possession  of  the  plaint- 
iff ;  "  *  or  that  plaintiff  is  the  lawful  owner  and  holder  ;  ^  or 
that  he  is  the  bona  fide  owner  and  holder  ;  ^  or  that  it  became 
his  property  by  purchase  ;  ">  has  been  held  sufficient  when  not 
objected  to  by  motion  to  make  definite. 

The  question  has  been  raised,  whether,  when  the  title  to  a 
bill  or  note  revests  in  one  by  whom  it  has  before  been  in- 
dorsed, he  may  strike  out  his  own  and  all  subsequent  indorse- 
ments, and  plead  his  original  title,  without  showing  a  re- 
transfer  to  himself.  The  weight  of  authority  is  in  favor  of 
his  right  to  do  so  ;  ^  though  there  is  some  conflict  in  the 
decisions,  and,  upon  principle,  it  would  seem  that  the  right 

1  Steph.  PL  121 ;  Ante,  105.  *  Lee  v.  Ainslie,   4  Abb.  Pr.  463. 

2  Bliss  PI.  230  ;  Max.  PL  88.  ^  Reeve  v.  Fraker,  32  Wis.  243. 

8  Sinker  v.  Floyd,  104  Ind.    291 ;  «  Holstein  v.  Rice,  15  How.  Pr.  1. 

Thomas  v.  Desmond,  12  How.  Pr.  ^  Prindle  v.  Caruthers,  15  N.  Y. 

321;  Adams  v.    HoUey,    12   How.  425. 

Pr.  326 ;  McNeil  v.  Coramandery,  «  2    Dan.  Neg.  Instr.    1198,    and 

131  Pa.  St.  339  ;   s.  c.  18  Atl.    Rep.  cases  cited. 
899 :  Hollis  v.  Richardson,  79  Mass. 


§326  GENERAL  RULES  OF  STATEMENT.  312 

should  depend  upon  the  character  of  the  transfers  from  and 
to  tJie  plaintiff.  Where  his  indorsement  was  "  for  collection  " 
only,  the  right  is  clear. 

326.  When  Complaint  Must  Show  Privity. — Privity- 
is  a  term  applied  to  certain  jural  relations  giving  rise  to 
primary  rights  and  duties.  When  privity  is  essential  to  the 
primary  right  asserted,  the  complaint  must  show  its  exist- 
ence ;  and  failure  to  show  it  is  a  defect  of  substance.  Where 
the  right  arises  from  privity  in  blood,  the  facts  showing  the 
exclusive  near  relationship  must  be  stated;  if  privity  in 
estate  is  relied  upon,  the  complaint  must  show  that  which 
creates  such  privity,  as,  grant,  lease,  or  assignment  of  lease ; 
and,  generally,  where  the  injury  complained  of  results  from 
a  breach  of  contract  merely,  the  complaint  must  show  privity 
of  contract  between  the  parties.  It  is  a  general  rule  that 
the  assignment  of  a  contract  does  not  create  privity  between 
the  obligor  and  the  assignee  ;  but  under  the  new  procedure, 
the  assignee  of  a  chose  in  action  may  sue  thereon  in  his  own 
name,  notwithstanding  the  want  of  privity. 

Where  the  injury  complained  of  results  from  reliance  on  a 
false  and  fraudulent  representation,  made  by  the  defendant 
to  another,  with  the  knowledge  and  intent  that  the  injured 
person  was  to  act  upon  tlie  faith  of  it ;  or  where  the  injury 
is  the  natural  and  necessary  result  of  a  wrongful  act  of  the 
defendant,  having  no  direct  relation  to  the  person  injured, 
privity  is  not  necessary  to  the  maintenance  of  an  action. 

In  order  to  adapt  certain  jural  relations  to  the  action  of 
assumpsit,  the  common  law  superadded  to  the  real  operative 
facts  the  fiction  of  an  implied  promise  to  pay.  This  supplied 
the  element  of  privity,  and  brought  many  cases,  otherwise 
remediless,  formally  within  the  operation  of  assumpsit.  This 
fiction  was  resorted  to  for  the  recovery  of  money  paid,  by 
mistake,  to  one  not  entitled  to  it;  or  to  recover  money 
obtained  by  fraud  or  duress  ;  and  where  one's  property  had 
been  tortiously  taken  and  converted  into  money,  he  might 
waive  the  tort  and  sue  for  money  had  and  received,  alleging 
in  his  declaration  a  promise  by  the  defendant  to  pay.^     In 

1  See  post,  415  et  seq.,  where  pri-    vity  as  an    element  of  rights  <rf 

action  is  more  fully  considered. 


313  ILITTERS  OF  SUBSTANCE.  §  327 

the  light  of  the  modern  science  of  jurisprudence,  disclosing 
the  true  foundation  and  elements  of  rights  and  obligations, 
and  in  the  light  of  modern  procedure,  adapted  to  the  diversi- 
fied forms  of  jural  relations,  the  allegation  of  a  promise  to 
pay  in  such  cases  is  as  clearly  unnecessary  as  it  would  be 
untrue.  The  primary  right  in  such  cases  arises  ex  lege^  and 
the  jural  relation  does  not  involve  privity. ^ 

327.  When  Consideration  Must  be  Alleged. — A  con- 
tract, to  be  valid  in  law,  must  be  supported  by  a  consider- 
ation ;  and  where  an  action  is  founded  upon  a  contract,  the 
complaint  must  state  the  consideration  for  the  promise  or 
obligation  sought  to  be  enforced,  unless  the  contract  is  of  a 
kind  which,  under  the  substantive  law,  imports  a  consider- 
ation. Ex  nudo  pacta  non  oritur  actio.  Under  the  common 
law,  deeds, — that  is,  contracts  executed  with  the  formality  of 
a  seal, — and  negotiable  instruments,  import  a  consideration  ; 
and  in  an  action  on  any  such  instrument  it  is  not  necessary, 
in  the  first  instance,  to  allege  or  prove  a  consideration  ;  but 
want  of  consideration  is  to  be  asserted  as  a  defense.  In 
most  of  the  states,  this  rule  of  the  common  law  obtains,  both 
in  the  substantive  law  and  in  procedure  ;  but  in  some  states 
private  seals  have  been  either  partly  or  entirely  abolished  by 
statute,  and  the  foregoing  rule,  so  far  as  it  relates  to  sealed 
instruments,  has  been  thereby  modified. 

Whether,  in  a  given  case,  there  is  a  consideration,  and 
whether  a  particular  consideration  is  in  law  sufficient  or  in- 
sufficient, are  questions  that  must  concern  the  pleader,  but 
their  consideration  does  not  properly  belong  to  a  work  on 
procedure. 

In  an  action  by  the  indorsee  of  negotiable  paper,  or  by  th< 
assignee  of  a  non-negotiable  contract,  the  complaint  need  no( 
state  the  consideration  for  the  transfer  to  plaintiff.^  If  the 
indorsee  or  assignee  holds  the  legal  title,  and  shows  that 
there  was  a  sufficient  consideration  between  the  original 
parties,  it   is  of  no    consequence  whether   he    obtained   it 

1  Keener  on  Quasi-Coiitracts,j3as-  2  Dumont  v.  Williamson,  180.  S. 
svm.  515 ;  Sheridan  v.  Mayor,  68  N.  Y. 

30  ;  Cottle  v.  Cole,  2o'lowa,  481. 


§  32S  GENERAL  RULES  OF  STATEMENT.  314 

for,  or  without,  consideration.  One  holding  the  legal  title 
to  a  chose  in  action,  by  indorsement  or  assignment,  though 
it  be  only  for  collection,^  or  as  collateral  security ,2  may  sue 
thereon  without  alleging  a  consideration  for  the  transfer  to 
hira.  If  the  plaintiff  has  tlie  right  tO  receive  the  money,  so 
that  the  defendant  will  be  protected  from  another  demand 
based  upon  the  same  claim,  he  is  the  real  party  in  interest, 
and  the  defendant  is  not  concerned  as  to  the  purpose  or  the 
nature  of  the  transfer.  As  to  anything  beyond  the  bona  fides 
of  the  holder,  the  defendant,  who  owes  the  debt,  has  no 
interest ;  ^  it  is  enough  that  he  will  be  protected  from  a 
second  recovery  on  the  same  demand.*  This  is  the  ratio  of 
the  rule. 

328.  When  Consideration  to  be  Alleged,  Continued. — 
The  presumption  of  sufficient  consideration  applies  to  every  in- 
dorser  of  negotiable  paper  who  is  in  the  chain  of  title  ;  and  in 
an  action  against  such  indorser  it  is  not  necessary  to  allege  a 
consideration  for  the  indorsement.*  But  this  presumption  does 
not  extend  to  one  who  is  a  stranger  to  the  note,  and  who  is 
not  in  the  chain  of  title ;  therefore,  in  an  action  against  a 
guarantor  on  a  bill  or  note,  a  consideration  for  such  collateral 
engagement  must  be  alleged.^ 

Whether  the  defense  of  no  consideration  is  available  under 
a  denial,  or  whether  it  must  be  specially  pleaded,  depends 
upon  the  character  of  the  obligation  sued  upon.  In  an  action 
on  a  contract  that  imports  a  consideration,  it  is  not  necessary 
that    the  plaintiff   allege  consideration,  and   the  defendant 

1  AUen  V.  Brown,  44  N.  Y.  228  ;  294  ;  Hilton  v.  Waring,  7  Wis.  492  ; 
Meeker  v.  Claghorn,  44  N.  Y.  349  ;  White  v.  Phelps,  14  Minn.  27.  Cf. 
Eaton  V,  Alger,  47  N.  Y.  345  ;  Van  Eman  v.  Stanchfield,  13  Minn. 
Knight  V.   Ins.  Co.,  26  O.  S.  664;  75. 

Hardin  v.    Helton,    50  Ind.    319  ;  »  City  Bank  v.  Perkins,  29  N.  Y. 

Cottle  V.   Cole,   20  Iowa,  481-485 ;  554  ;    Castua  v.  Sumner,   2  Minn. 

Allen  V.  Miller,  11   O.  S.   374,  377  ;  44. 

White  V.  Stanley.   29   O.  S.    423 ;  *  Hays  v.  Hathorn,  74  N.  Y.  486, 

Beattie  v.  Lett,    28  Mo.    596.     Cf.  and  cases  there  cited. 

Hays  V.  Hathorn,    74    N.   Y.   486-  &  Dumont  v.  Williamson,  18  O.  S. 

490  ;  Curtis  v.  Sprague,  51  Cal.  239.  515  ;  Clay  v.  Edgerton,  19  O.  S.  549. 

2  Williams  v.  Norton,  3  Kan.  295  ;  «  Greene  v.  Dodge,  2  Ohio,  430  ; 
Wetmore  v.  San  Francisco,  44  Cal.  Greenough  v.  Smead,  3  O.  S.  415. 


315  MATTERS  OF  SUBSTANCE.  §  329 

must  plead  the  want  of  it.  In  an  action  where  the  plaintiff 
must  allege  consideration,  a  denial  will  make  an  issue  and 
admit  evidence  as  to  the  consideration.^  Failure  of  consid- 
eration, when  relied  on,  must  be  alleged.  It  is  a  fact  occur- 
ring subsequent  to  the  contract,  and  is  new  matter  to  be 
pleaded.'^ 

No  formal  words  are  necessary  in  alleging  consideration. 
If  an  instrument  is  pleaded  by  copy,  and  the  copy  recites  a 
consideration,  this  is  sufficient  without  direct  allegation.^ 
An  allegation  that  ".for  a  valuable  consideration,"  defendant 
entered  into  the  contract,  is  sufficient  on  demurrer,^  though 
subject  to  motion  to  make  definite.  If  the  contract  is  of  a 
kind  to  require  a  peculiar  consideration,  the  requisite  kind 
must  be  alleged.^  If  the  consideration  alleged  is  an  execu- 
tory agreement,  this  must  be  pleaded,  and  performance 
averred.^ 

329.  Performance  of  Conditions. — When  one  party  to 
a  contract  is  thereby  bound  to  do  some  act  before  the  other 
party  is  obliged  to  perform  his  covenants,  the  doing  of  such 
act  is  a  condition  precedent ;  that  is,  performance  of  such  act 
by  the  party  so  bound  thereto  must  precede  a  right  in  him  to 
have  performance  by  the  other  party,  or  to  complain  of  his 
non-performance.  It  follows,  that  where  the  right  of  plaint- 
iff depends  upon  his  performance  of  a  condition  precedent, 
he  must  aver  performance,  or  its  equivalent,  in  his  complaint ;' 

1  Dubois  V.  Hermance,  56  N.  Y.  328  ;  Winne  v.  Col.  Spr.  Co.,  3 
673 ;    Butler  v.    Edgerton,  15  Ind.     Colo.  155. 

15  ;   Nixon  v.  Beard,  111  Ind.  137  ;  ^  Ross  v.  Sagdbeer,  21  Wend.  166 ; 

Moore  v.    Boyd,  95  Ind.  134.     Cf.  Weller  v.    Hersee,    10    Hun.    431. 

Wheeler  v.  Billings,  38  N.  Y.  263.  Cf.  Seaman  v.  Seaman,  12  Wend. 

2  Dubois  V.  Hermance,  56  N.  Y.  381  ;  Dolcher  v.  Fry,  37  Barb.  152. 
673.  Contra,  Spies  v.  Roberts,  18  ^  Becker  v.  Sweetzer,  15  Minn. 
Jones  &  S.  301.  427. 

3  Prindle  v.  Caruthers,  15  N.  Y.  ^  Gould  PI.  iv.  13  ;  Webb  v.  Smith, 
425;  Leonard  V.  Sweetzer,  16  Ohio,  6  Colo.  365;  Ferris  v.  Purdy,  10 
1  ;  Meyer  v.  Hibsher,  47  N.  Y.  265  ;  Johns.  359  ;  Wilcox  v.  Cohn,  5 
Elmquist  v.  Markoe,  39  Minn.  494  ;  Blatch.  346  ;  Lightfoot  v.  Cole,  1 
Frank  v.  Irgens,  27  Minn.  43  ;  Dick-  Wis.  26  ;  Buford  v.  N.  Y.  Life 
erson  V.  Derrickson,  39  111.  574.  Ins.  Co.,  5  Oreg.  334;   Home  Ins. 

*Bank  v.  Ins.  Co.,  72   Wis.  535.     Co.  v.  Duke,  43  Ind.  418. 
Contra,  Marshall  v.  Aiken,  25  Vt. 


§  329  GENERAL  RULES  OF  STATEMENT.  3ig 

for  performance  of  such  condition,  or  its  legal  equivalent,  be- 
comes a  constituent  part  of  the  right  of  action.  An  aver- 
ment of  readiness  at  all  times  to  perform  is  not  sufficient,  un- 
less exonerating  facts  be  added.*  If  excuse  from  performance 
is  relied  on,  the  plaintiff  should  aver  his  readiness  to  per- 
form, and  state  the  facts  that  relieved  him  from  perform- 
ance r^  and  where  there  are  mutual  conditions  to  be  per- 
formed by  both  parties,  at  the  same  time,  the  plaintiff  must 
allege  either  actual  performance  or  a  tender  of  performance,^ 
unless  tender  is  excused  bj  facts  which  show  that  it  would 
be  nugatory.  Thus,  where  plaintiff  purchased  land  from  the 
defendant,  to  be  conveyed  free  from  incumbrance  at  a  certain 
date,  and  then  to  be  paid  for,  a  complaint  for  breach  of  the 
covenant  to  convey  must  allege  payment,  or  tender  of  pay- 
ment, of  the  purchase-money.  But  if  in  such  case  the  laiii 
was  incumbered,  and  the  defendant  could  not  free  it  from  in- 
cumbrance, tender  of  payment  is  thereby  excused,  because  it 
would  be  wholly  nugatory.*  When  performance  is  thus  ex- 
cused, the  exonerating  facts  should  be  pleaded. 

It  is  not  necessary  for  the  plaintiff  to  refer,  in  his  com- 
plaint, to  any  condition  subsequent,  annexed  to  the  right 
which  he  asserts.  The  office  of  such  condition  is,  not  to 
create  a  right,  but  to  qualify  or  defeat  it ;  and  since  perform- 
ance thereof  would  furnish  matter  of  defense,  it  should  be 
pleaded  by  the  defendant.^  In  an  action  on  a  note  payable 
to  plaintiffs  as  trustees,  in  consideration  that  they  will  use 
the  same  only  for  the  payment  of  the  liabilities  of  a  certain 
association,  the  complaint  need  not  allege  that  the  liabilities 
of  the  association  have  not  been  paid ;  nor  that  plaintiffs  will 
apply  the  proceeds  according  to  said  provision.  If  the  liabili- 
ties of  the  association  have  been  paid,  it  is  matter  of  defense ; 

1  Walter  v.   Hartwig,    106  Ind.  365 ;    Sons  of  Temp,  v.  Brown,   9 
123.  Minn.  144  ;  Lewis  v.  Davis,  21  Ark. 

2  Smith  V.  Brown,  17  Barb.   431 ;  237  ;    Sorrells  v.  McHenry,  38  Ark. 
Cornwell  v,  Haight,  21   N.   Y.  462.  127. 

8  Williams  v.  Healey,    3  Denio,  *  Karker  v.  Haverly,  50  Barb.  79 ; 

363  ;  Beecher  v.  Conradt,  13  N.  Y.  Read  v.  Lambert,  10  Abb.  Pr.  N.  S. 

108;    Van   Schaick    v.  Winne,  16  428. 

Barb.  89 ;   Webb  v.  Smith,  6  Colo.  ^  Qould  PI.  iv.  17. 


3X7  MATTERS  OF  SUBSTANCE.  ^  330 

and  misapplication  of  the  proceeds  is  not  to  be  anticipated.^ 
A  provision  in  a  fire-insurance  policy  that  the  insurer  may, 
instead  of  paying  for  a  loss  in  money,  rebuild  or  replace  the 
property  destroyed,  is  in  the  nature  of  a  condition  subse- 
quent, available  only  at  the  option  of  the  insurer;  and  in  an 
action  to  recover  for  a  loss,  it  is  not  necessar}'-  that  the  plaint- 
iff aver  the  refusal  of  the  defendant  to  rebuild  or  replace 
the  property  destroyed/^ 

330.  Time,  Place,  and  Malice,  when  Material,  Must  be 
Alleged. — When  a  particular  time  is  material  to  a  right  oi' 
action,  it  must  be  alleged,  and  alleged  truly  ;  and  it  must  be 
proved  as  alleged.  Where  time  is  of  the  essence  of  a  con- 
tract, it  is  material  to  a  right  of  action  thereon.  The  parties 
to  any  contract  may,  by  express  terms,  make  a  particular 
time  of  the  essence  thereof.  In  the  absence  of  such  express 
provision,  the  court  will  look  to  the  terms  of  the  contract, 
the  conduct  of  the  parties,  and  the  nature  and  scope  of  the 
transaction,  to  determine  whether  the  parties  intended  the 
time  named  to  be  of  the  essence  of  their  contract ;  the  gen- 
eral rule  being,  that  if  a  thing  to  be  done  at  a  specified  tin;e 
can  as  well  be  done  at  another  time, — that  is,  if  tlie  substitu- 
tion of  another  time  Avill  impose  no  loss  or  material  incon- 
venience,— the  time  is  not  essential ;  but  if  the  substitution 
of  another  time  will  work  detriment,  the  time  specified  is  of 
the  essence.  A  more  liberal  rule  in  this  regard  obtains  in 
equity  than  at  law.^  In  an  action  against  the  drawer  of  a 
bill,  or  the  indorser  of  a  bill  or  note,  the  precise  day  of  de- 
mand and  notice  is  material  to  the  right  of  action,  and  must 
be  alleged  with  certainty  ;  but  in  an  action  for  trespass,  or 
other  tort,  the  date  is  not,  as  a  rule,  essential  to  the  right  of 
action,  and  may  generally  be  laid  as  "  on  or  about "  a  certain 
day ;  or  it  may  be  alleged  under  a  videlicet^  and  any  time 
may  be  proved.     When  a  date  is  used  as  descriptive  of  a 


^  Cox  V.  Plough,   69    Ind.   311  ;  sidered  in  a  subsequent  chapter. 

Hammer  v.  Kaughman,  2  Bond,  1.  Post,  372,  373. 

2  Ins.  Co.  V.  McGookey,  33  O.  S.  ^S    Par.   on  Cont.   384*;     Pol. 

555.     The  manner  of  pleading  per-  Prin.  of  Cont.  443  et  seq. 
formance    of    conditions    is    con- 


§331  GENERAL  RULES  OF  STATEMENT.  31$ 

written  instrument,  it  becomes  material,  and  must  be  proved 
as  stated. 

So,  also,  where  place  is  material  to  the  right  of  action,  or 
to  the  jurisdiction  of  the  court,  it  must  be  alleged.  In 
an  action  on  a  contract  that  designates  a  particular  place 
where  property  is  to  be  delivered  and  payment  made,  the 
complaint  must  aver  readiness  to  pay  or  deliver  at  that  place.^ 
And  in  local  actions,  such  as  for  the  recovery  of  lands,  or  the 
foreclosure  of  a  mortgage,  it  must  appear  from  the  averments 
of  the  complaint  that  the  subject  of  the  action  is  within  the 
territorial  jurisdiction  of  the  court.  Though  a  mere  failure 
to  show  that  tlie  lands  are  within  the  jurisdiction  does  not 
render  the  complaint  demurrable ;  demurrer  for  such  cause 
will  lie  only  where  want  of  jurisdiction  affirmatively  appears.^ 

And  where  malice  is  an  essential  element  of  the  delict,  and 
hence  is  material  to  the  right  of  action,  it  must  be  alleged. 
For  example,  in  an  action  for  malicious  prosecution,  the  ele- 
ments of  the  delict  are,  the  prosecution,  malice,  and  want  of 
probable  cause  ;  ^  and  the  malice  of  the  defendant  must  be 
«,lleged.  In  actions  for  libel  and  slander,  while  there  is  not 
-entire  uniformity  in  the  holdings,  the  better  opinion,  both 
upon  reason  and  authority,  is,  that  malice  is  presumed,  and  need 
not  be  alleged  in  the  complaint;  though  if  the  defendant 
answer  that  the  words  were  privileged,  the  plaintiff  may  re- 
ply actual  malice.^ 

331.  When  Demand  Must  be  Alleged. — Demand  of  pay- 
ment, or  of  delivery,  is  sometimes  a  prerequisite  of  the  plaint- 
iff's right,  and  sometimes  of  the  defendant's  delict,  and  in 

1  Clark  V.  Dales,  20  Barb.  42.  N.  Y.  547  ;  Fry  v.  Bennett,  5  Sandf. 

2  Powers  V.  Ames.  9  Minn.  178.  54  ;  Jarnigan  v.  Fleming,  43  Miss. 
2  Post,  498.  710.  Cf.  Hunt  v.  Bennett,  19  N.  Y. 
*  Post,  385,  494.     Tlie  ground  for  173.     But  it  is  suggested,  that  the 

dispensing  with   tlie  allegation  of  presumption  that  the  plaintiff  had 

malice  is,  that  an  allegation  of  the  a  good  reputation  does  not  require 

falsity  of    the  defamatory  words  or  warrant  the  implication  that  the 

raises    the    implication   of  malice  words  are  false  ;  for  the  reputation 

in    speaking    them.      And    some  may  be  good,  and  yet  the  defura- 

authorities  go  so  far  as  to  hold  atory  words  be  true.     See  charac- 

that     the     allegation     of     falsity  ter  and  reputation  distinguished, 

may   be    dispensed    with.      Max.  post,  394  and  note. 
PL  209  ;   Watchter  v.  Quenzer,  29. 


?^19  :EATTERS  OF  SUBSTANCE.  §332 

either  case,  the  complaint  must  allege  the  demand.  In  an 
action  against  the  maker  of  a  promissory  note,  the  defendant's 
engagement  being  absolute  and  unconditional,  no  demand  is 
necessary  either  to  the  plaintiff's  right  or  to  the  defendant's 
duty  or  delict ;  but  in  an  action  against  an  indorser,  whose 
liability  is  conditioned  upon  demand  and  notice,  both  de- 
mand and  notice  must  be  alleged;  and  generally,  where  the 
defendant  came  lawfully  into  possession  of  plaintiff's  personal 
property,  demand  is  a  prerequisite  to  the  right  to  sue  there- 
for. This  subject  is  more  fully  considered  in  a  subsequent 
chapter.^ 

332.  Purchase  for  Value  Without  Notice. — When 
an  equitable  claim  to  property  comes  into  competition  with 
the  legal  ownership,  the  owner  of  the  legal  title  may  defend 
against  the  equity  on  the  ground  that  he  is  a  purchaser  for 
value,  and  without  notice.  Purchase  for  value,  without 
notice  of  an  existing  equity,  is  not  a  source  of  title,  legal  or 
equitable  ;  it  is  a  protection  for  the  legal  title  against  an 
equitable  right.  "  Equitable  title,"  though  well  authorized 
by  usage,  is  really  a  misnomer.  Wliat  is  called  an  equitable 
title,  or  equitable  ownership,  is  not  strictly  a  title,  but  a 
mere  personal  right  against  the  real  owner,  for  a  convey- 
ance of  the  title,  and  enforceable  in  equity.  This  personal 
right  against  a  former  owner  can  be  enforced  against  a  sub- 
sequent purchaser  of  the  legal  title,  only  when  he  acquired 
his  title  with  knowledge  of  the  prior  equity;  and  the  law 
will  imply  notice,  where  no  consideration  has  been  paid. 

It  f6llows,  that  in  an  action  to  enforce  an  equity  against 
one  who  has  acquired  the  legal  title,  whether  to  land  or  chat- 
tels, the  plaintiff  must,  in  addition  to  the  operative  facts 
showing  his  equity,  allege  that  the  defendant  had  notice  in 
fact  of  his  equity,  or  that  he  did  not  pay  value,  and  so  had 
notice  in  law. 

If  the  legal  title  to  property  has  been  transferred  from  A. 
to  B.,  and  from  B.  to  C,  in  a  suit  by  D.  to  charge  the  prop- 
erty with  an  equity  in  his  favor  against  A.,  he  must  allege 
notice  to  both  B.  and  C. ;  for  if  B.  had  notice,  and  C.  had 

1  Post,  395. 


g  333  GENERAL  RULES  OF  STATEMENT.  320 

not,  his  title  is  not  subject  to  the  equity;  and  so,  if  B.  took 
without  notice,  he  passed  his  unimpeachable  title  to  C,  even 
though  C.  had  notice.^ 

In  such  cases,  if  the  defendant  traverse  by  denying  notice 
and  alleging  payment  of  value,  the  onus  probandi  will  be  upon 
the  plaintiff ;  for  he  can  subject  the  defendant  to  his  equity 
against  another,  onl}""  when  it  is  shown,  first  by  allegation, 
and  then  by  proof,  that  the  defendant  is  privy  to  the  plaint- 
iff's  equity .2  In  the  statement  of  such  defense,  the  defend- 
ant must  allege  the  seizin  of  his  grantor,  must  deny  notice  of 
the  plaintiff's  claim  prior  to  payment  of  consideration,  and 
must  allege  consideration  and  its  actual  payment.  Consider- 
ation secured  to  be  paid  is  not  sufficient.^ 

333.  The  Statute  of  Frauds. — It  was  a  rule  of  the  com- 
mon law,  that  in  pleading  an  act  originally  authorized  by  a 
statute  requiring  it  to  be  in  writing, — as  in  the  case  of  a  will 
of  lands, — it  must  be  alleged  to  have  been  in  writing ;  *  but 
where  an  act,  valid  at  common  law  without  a  writing,  is  by 
statute  required  to  be  in  writing, — as  in  the  case  of  a  prom- 
ise to  answer  for  the  debt  or  default  of  another, — it  is  not 
necessary  to  allege  that  it  was  in  writing,  though  it  could  be 
proved  only  by  the  writing.^  This  distinction  rests  upon  the 
fact  that  in  the  one  case  the  only  authority  for  the  act  is  the 
statute,  which  makes  the  writing  a  constituent  part  of  the 
act,  while  in  the  other  case  the  statute  only  regulates  the 
mode  of  doing  an  act  authorized  and  valid  before  the  statute. 

This  rule  of  the  common  law  is  modified  by  this  further 
distinction,  that  when  the  plaintiff  relies  upon  an  act  re- 
quired by  statute  to  be  evidenced  by  writing,  he  need  not 
allege  the  writing,  but  when  the  defendant  pleads  such  act, 
he  must  allege  the  writing.     The  plaintiff  is   excused  from 

1  Lang.  Eq.  PI.  185 ;  Bisph.  Prin.  3  Kerr  on  Frauds,  369 ;  Bliss  PL 
of  Eq.  261-265,  where  the  reason  395  ;  Weaver  v.  Barden,  49  N.  Y. 
for  the  rule  is  stated.     Cf.  Kerr  on    286. 

Frauds,  369  ;   Wallace  v.   Wilson,  *  Tyler's  Steph.  PI.  331 ;  Duppa  v. 

30  Mo.    335 ;   Weaver  v.  Barden,  Mayo,  1  Saund.  276  e,  note  2. 

49  N.  Y.  286.  &  Steph.  PL  379  ;  Duppa  v.  Mayo, 

2  Lang.  Eq.  PL  185.     Cf.  Harris  1  Saund.  276  e,  note  2. 
V.  Ingledew,  3  P.  Wms.  91. 


321  MATTERS  OF  SUBSTANCE.  §  334 

making  this  allegation  on  the  ground  that  when  he  alleges 
the  doing  of  the  act,  the  law  presumes  that  it  was  done 
according  to  law ;  the  reason  given  for  requiring  the  defend- 
ant to  allege  the  writing  is,  that  he  shall  not  take  away  the 
plaintiff's  action  and  not  give  him  another  on  the  agreement 
pleaded. 1 

The  requirement  here  spoken  of  relates  mainly  to  contracts 
required  by  the  statute  of  frauds  to  be  evidenced  by  writing; 
and  the  practice  under  the  new  procedure  is  not  entirely 
uniform  in  this  regard.  It  is  the  general  rule  in  this  country, 
that  the  plaintiff,  in  pleading  a  contract  within  the  statute, 
whether  his  action  be  for  legal  or  for  equitable  relief,  is  not 
required  to  allege  compliance  with  the  statute.^  A  learned 
judge  has  stated  the  rule  in  these  words :  "  The  statute  of 
frauds  has  not  altered  the  rules  of  pleading,  in  law  or  in 
•equity.  A  declaration  on  a  promise  which,  though  oral 
only,  was  valid  by  the  common  law,  may  be  declared  on  in 
the  same  manner  since  the  statute  as  it  might  have  been 
before.  The  writing  is  matter  of  proof,  and  not  of  allega- 
tion." 3 

334.  Statute  of  Frauds,  Continued. — As  to  the  way 
in  which  the  defendant  may  take  advantage  of  the  statute, 
there  is  some  discrepancy  in  the  decisions  and  in  the  prac- 
tice.    In  some  cases  it  has  been  held  that  non-compliance 

1  Steph.  PI.  380 ;  Case  v.  Barber,  H.  259 ;  Brown  v.  Bames,  6  Ala. 
Raym.  450 ;  Duppa  v.  Mayo,  1  694 ;  Cross  v.  Everts,  28  Tex.  523 ; 
Saund.  275 d,  note;  3  Salk.  519,  Walsh  v.  Kattenburgh,  8  Minn.  99  ; 
anon.  Cranston  v.   Smith,   6  R.    I.  231 ; 

2  Marston  v.  Sweet,  66  N.  Y.  206  ;  Ecker  v.  Bohn,  45  Md.  278  ;  Taylor 
Gardner  v.  Armstrong,  31  Mo.  535  ;  v.  Patterson,  5  Oreg.  121  ;  Hubbell 
McCann  v.  Pennie,  100  Cal.  547  ;  v.  Courtney,  5  S.  C.  87 ;  McDonald 
Robbins  v.  Deverill,  20  Wis.  142;  v.  M.  V.  H.  Assn.,  51  Cal.  210; 
Y.  M.  C.  Assn.  v.  Dubach,  82  Mo.  First  Nat.  Bank  v.  Kinner,  1  Utah 
475  ;  Pettit  v.  Hamlin,  43  Wis.  314  ;  Ty.  100.  Contra  in  some  states,  by 
Price  V.  Weaver.  13  Gray,  273  ;  Day-  statute  ;  see  Langford  v.  Freeman, 
ton  V.  Williams,  2  Doug.  (Mich.)  60  Ind.  46.  Cf.  Babcock  v.  Meek, 
31 ;  Mullaly  v.  Holden.  123  Mass.  45  Iowa,  137  ;  Smith  v.  Fah.,  15  B. 
583 ;     Carroway    v.    Anderson,    1  Mon.  443. 

Humph.  61;    Elting  v.  Vanderlin,        ^  pgr  Metcalf,   J.,  in  Price  v. 
4  Johns.  237  ;  Piercy  v.  Adams,  22    Weaver,  13  Gray,  273. 
Ga.  109  ;  Walker  v.  Richards,  39  N. 
21 


§334 


GENERAL  RULES  OF  STATEMENT. 


322 


with  the  statute  is  available  only  as  a  defense  of  new  matter, 
to  be  specially  pleaded ;  and  that  failure  so  to  plead  it  is  a 
waiver  of  its  benefits.^  But  it  has  been  held  generally,  that 
the  general  denial  of  the  defendant,  by  placing  the  burden  of 
proof  upon  the  plaintiff,  requires  him  to  sustain  the  issue  by 
competent  evidence,  and  makes  the  statute  available  to  the 
defendant  by  objection,  at  the  trial,  to  oral  evidence  to  prove 
a  contract  required  by  the  statute  to  be  in  writing.^  It  has 
been  held,  though  upon  questionable  grounds,  that  in  such 
case  the  plaintiff  may  prove  an  oral  contract,  with  collateral 
facts  to  validate  it.^  It  has  also  been  held,  that  under  a 
denial  of  the  making  of  the  contract,  the  defendant  may 
avail  himself  of  the  statute,  even  though  he  does  not  object 
to  the  evidence  of  an  oral  contract.^  But  the  better  opinion 
is,  that  when  a  contract,  within  the  statute,  is  proved  by 
parol  evidence,  without  objection  or  exception,  the  right  to 


1  ilartin  v.  Blanchett,  77  Ala. 
288 ;  Brigham  v.  CarUsle,  78  Ala. 
243;  Huffman  V.  Ackley,  34  Mo. 
277;  Gordon  v.  Madden,  82  Mo. 
193  ;  Maybee  v.  Moore,  90  Mo.  340  ; 
The  C.  &  W.  Coal  Co.  v.  Liddell,  69 
lU.  639  ;  McClure  v.  Otrich,  118  III. 
320 ;  Baiiey  v.  Irwin,  72  Ala.  505. 
Cf.  Lawrence  v.  Chase,  54  Me.  196, 
199. 

2Wiswell  V.  Teft,  5  Kan.  263; 
Amberger  v.  Marvin,  4  E.  D.  Smith, 
393 ;  Morrison  v.  Baker,  81  N.  C. 
76  ;  Bonham  v.  Craig,  80  N.  C. 
224 ;  Birchell  v.  Neaster,  36  O.  S. 
331 ;  Suman  v.  Springate,  67  Ind. 
115  ;  Blanck  v.  Little,  10  Reporter 
(N.  Y.),  151 ;  May  v.  Sloan,  101  U. 
S.  231 ;  Allen  v.  Richard,  83  Mo. 
55  ;  Springer  v.  Kleinsorge,  83  Mo. 
153  ;  Reynolds  v.  Dunkirk  &  S.  L. 
Ry.  Co.,  17  Barb.  613  ;  Hotchkiss 
V.  Ladd,  36  Vt.  593  ;  s.  c.  86  Am. 
Dec.  679  ;  Talbot  v.  Bowen,  1  A.  K. 
Marshall,  436 ;  s,  c.  10  Am.  Dec. 
747  ;  Wynn  v.  Garland,  19  Ark.  23  ; 
S.  C.  68  Am.  Dec.  190 ;    Billingslea 


V.  Ward,  33  Md.  48 ;  Ruggles  v. 
Gatton,  50  111.  412;  Buttemere  v.. 
Hayes,  5  M.  &  W.  456;  Elliott  v. 
Thomas,  3  M.  &  W.  170  ;  Ontaria 
Bk.  V.  Root,  3  Paige,  478  ;  Hook  v. 
Turner,  22  Mo.  333  ;  SmaU  v.  Ow- 
ings,  1  Md.  Ch.  Dec.  363 ;  Trapnall 
V.  Brown,  19  Ark.  39  ;  Champlin  v. 
Parish,  11  Paige,  405  ;  Fountain e  v» 
Bush,  40  Minn.  141 ;  Gibbs  v.  Nash, 
4  Barb.  449  ;  Chickering  v.  Brooks, 
61  Vt.  554.  Cf.  Tajdor  v.  MerriU» 
55  m.  52  ;  Durant  v.  Rogers,  71  111. 
121.  Contra,  Huffman  v.  Ackley, 
34  Mo.  277  ;  Gordon  v.  Madden,  82 
Mo.  193 ;  Maybee  v.  Moore,  90  Mo. 
340  ;  The  C.  &  W.  Coal  Co.  v.  Lid- 
dell, 69  lU.  639  :  McClure  v.  Otrich, 
118  111.  320  ;  Bailey  v.  Irwin,  72  Ala. 
505  ;  Martin  v.  Blanchett,  77  Ala. 
288  ;  Brigham  v.  Carlisle,  78  Ala. 
243.  Cf.  Lawrence  v.  Chase,  54  Me. 
196,  199. 

3  Brock  V.  Knower,  37  Hun,  609. 

*  Wynn  v.  Garland,  19  Ark.  23, 
34.  Cf.  Reid  v.  Stevens,  120  Mass. 
209. 


323  MATTERS  OF  SUBSTANCE.  g  334 

invoke  the  statute  is  waived,  and  can  not  afterward  be  in- 
sisted upon.i  Where  the  complaint  contains  only  the  com- 
mon counts,  and  there  is  a  general  denial,  the  defendant  may 
avail  himself  of  the  statute  without  having  pleaded  it.  In 
such  case,  the  defendant  is  not  advised  by  the  complaint 
that  the  plaintiff's  demand  is  within  the  operation  of  the 
statute  ;  and  it  will  be  time  enough  for  him  to  plead  the 
statute  for  his  defense,  when  it  is  alleged  against  him  that 
he  has  made  a  contract  that  comes  within  its  purview.^ 

The  defendant  may  also  avail  himself  of  the  statute  by 
answer ;  and  where  the  answer  admits,  or  does  not  deny,  the 
contract  sued  on,  it  must  specially  plead  the  statute,  to  make 
it  available  to  the  defendant.^  This  is  upon  two  grounds ; 
(1)  the  contract  being  admitted,  the  plaintiff  is  not  required 
to  prove  it,  and  (2)  the  defendant,  by  admitting  the  con- 
tract, is  held  to  have  waived  the  protection  of  the  statute. 
Nam  quilihet  potest  renunciare  juri  pro  se  introducto. 

If  the  complaint  affirmatively  shows  the  contract  to  be 
within  the  statute,  and  to  be  oral,  and  does  not  allege  any 
other  sufficient  authentication  thereof,  such  as  part  perform- 
ance,* or  execution  thereof,^  the  defendant  may  make  the 
statute  available  by  demurrer.^ 

1  Nunez  v.  Morgan,  77  Cal.  427 ;  Linn  Boyd  T.  W.  Co.  v.  Terrill,  13 
The  C.  &  W.  Coal  Co.  v.  Liddell,  Bush,  463 ;  Wentworth  v.  Went- 
69111.639.  cy.  Lawrence  V.  Chase,  worth,  2  Minn.  238;  Howard  v. 
54  Me.  196.  Brower,  37  O.  S.  402  ;    Boiling  v. 

2  Durant  v.  Eogers,  71  111.  121  ;  Munchus,  65  Ala.  558 ;  Barr  v. 
Per  ScOTT,  J.,  in  Taylor  V.  Merrill,  O'Donnell,  76  Cal.  469;  Cloud  v. 
55111.  52.  Greasley,  125  111.  313;    Ahrend  v. 

8  Duffy  V.  O'Donovan,  46  N.  Y.  Odiorne,  118  Mass.  261  ;    Krhon  v. 

223  ;  Alger  v.  Johnson,  4  Hun,  412  ;  Blantz,  68  Ind.  277  ;  Macy  v.  Child- 

Burtv.  Wilson,  28  Cal.  632;  Gwynn  ress,  2  Tenn.  Ch.  438.     Aliter,  if 

V.  McCauley,  32  Ark.  97  ;    Osborne  such  objection   does  not  affirma- 

V.  Endicott,  6  Cal.  149;    Harris  v.  lively  appear.    Sanborn  v.  Rodgers, 

Knickerbacker,  5  Wend.  638.     Cf.  33  Fed.  Rep.  851  ;  Manning  v.  Pip- 

Marston  v.  Sweet,  66  N.  Y.  206.  pen.  86  Ala.  357  ;   Broder  v.  Conk- 

*  Arguello  v.    Edinger,   10  Cal.  lin,  77  Cal.  330 ;    Sherwood  v.  Sax- 

150.  ton,  63  Mo.  78  ;  Cozine  v.  Graham, 

6  Shank  v.  Teeple,  33  Iowa,  189.  2  Paige,  177  ;  Thomas  v.  Hammond, 

6  Randall  v.  Howard,  2  Black,  47  Tex.  42. 
585  ;  Walker  v.  Locke,  5  Cush.  90 : 


§335  GENERAL  RULES  OF  STATEMENT.  324 

335.  Statute  of  Frauds,  Continued. — The  common-law 
rule,  that  when  the  defendant  relies  for  his  defense  upon  a 
contract  that  comes  witliin  the  statute  of  frauds,  he  must 
allege  that  it  is  in  writing,  has  been  held  to  obtain  under  the 
Reformed  Procedure.^ 

An  answer  pleading  non-compliance  with  the  statute  as  a 
defense  should  be  clear  and  explicit  to  that  end.  Such  an- 
swer should  state  tlie  facts  which  show  a  non-compliance  with 
the  statute.  An  allegation  "  that  the  contract  is  void  in  law, 
and  that  the  defendant  is  not  bound  to  perform  the  same," 
is  a  mere  legal  conclusion,  and  is  insufficient.^ 

So,  an  allegation  that  the  contract  "was  never  reduced  to 
writing  in  any  form,"  or  that  it  was  "  a  verbal  contract "  ;  ^  an 
allegation  that  the  contract  was  made  on  express  condition 
that  the  plaintiff  should  execute  and  deliver  an  instrument 
in  writing  embodying  a  part  of  its  terms,  and  had  refused  to 
do  so ;  *  and  an  allegation  that  no  formal  note  of  the  agree- 
ment charged  was  made,^  or  that  the  contract  was  "  not 
evidenced  by  writing,"  ^  have  been  held  not  to  entitle  the 
defendant  to  the  benefit  of  the  statute.  Where  the  answer 
to  a  bill  for  specific  performance  of  a  contract  for  the  sale  of 
land  alleged  that  the  writing  produced  was  signed,  not  to 
acknowledge  the  agreement,  but  for  another  purpose,  and 
concluded  by  submitting  to  the  court  whether  it  was  "an 
agreement,  such  as  is  required  by  law  and  equity,  to  compel 
the  defendant  to  make  the  sale  and  conveyance,"  the  suffi- 
ciency of  the  allegation  was  doubted.'^ 


^  Max.    PI.    444  ;    Reinheimer  v.  ''  Barry  v.  Coombe,  1  Pet.  649. 

Carter,    31    O.    S.    579.       Contra,  A    Critique     of    the    Foregoing 

Tucker  v.  Edwards,  7  Colo.    209.  Rules. — The  rules  stated  in  the  last 

2  VaupeU  V.  Woodward,  2  Sandf.  three  sections,  however  much  some 

Ch.  143.  of  them  may  violate  the  general 

*  Battel  V.  Matol,  58  Vt.  271.  principles  of  pleading,  are  well  es- 

*  Marston  v.   Swett,    66    N.   Y.  tabUshed  by  the  authority  of  pre- 
206.  cedent.      But  a  critical  examina- 

^  Skinner  v.  McDonall,  2  DeG.  &  tion  of  these  rules,  in  the  light  of 

S.  265.  the  general  principles  of  pleading, 

6  Edelin  v.  Clarkson,  3  B.  Mon.  and  of  the  settled  interpretation  of 

31.  the  statute,  will  serve  to  elucidate 


325 


MATTERS  OF  SUBSTANCE. 


§335 


The  form  of  statement  requisite  for  asserting  tlie  defense 
of  the  statute  will  vary,  according  to  the  language  of  the 


the  principles,  and  will  neither  un- 
settle nor  obscure  the  established 
rules. 

While  there  is  some  discrepancy 
in  the  decisions,  as  to  the  meaning, 
the  operation,  and  the  effect  of  the 
statute  of  frauds,  the  courts  have 
held,  with  comparative  unanimity, 
that  non-compliance  with  the 
statute  does  not  render  a  conti'act 
void  or  illegal.  The  parties  are  at 
liberty  to  perform  such  contracts, 
and  it  is  not  the  policy  of  the  statute 
to  discourage  performance  thereof. 
When  a  verbal  contract,  within  the 
statute,  has  been  fully  executed, 
the  rights  and  obligations  of  the 
parties  are  the  same  as  though  the 
statute  had  been  complied  with. 
Stone  V.  Dennison,  13  Pick.  1  ;  Ryan 
v.  Tomlinson,  39  Cal.  639 ;  Lavery 
V.  Turley,  6  Hurlst.  &  N.  239; 
Andrews  v.  Jones,  10  Ala.  400 ; 
Craig  V.  Vanpelt,  8  J.  J.  Marsh. 
489  ;  McCue  v.  Smith,  9  Minn.  252 ; 
Beal  v.  Brown,  13  Allen,  114; 
Shank  v.  Teeple,  33  Iowa,  189. 
And  when  so  much  of  a  contract 
as  comes  within  the  statute  has 
been  executed,  its  remaining  stipu- 
lations are  enforceable  by  action. 
Green  v.  Saddington,  7  El.  &  B. 
503  ;  Souch  v.  Strawbridge,  2  C.  B. 
814,  per  Tindal,  C.  J.  ;  Preble  v. 
Baldwin,  6  Cush.  549;  Page  v. 
Monks.  5  Gray,  492 ;  Eastham  v. 
Anderson,  119  Mass.  526  ;  Lavery  v. 
Egan,  143  Mass.  389;  Hodges  v. 
Green,  28  Vt.  858;  Worden  v. 
Sharp,  56  111.  104  ;  Allen  v.  Aguirre, 
7  N.  Y.  543.  Cf.  Tripp  v.  Bishop. 
56  Pa.  St.  424  ;  King  v.  Smith,  33 
Vt.  22.  The  right  to  recover  money 
paid  under  a  verbal  contract  within 
the  statute,  to  recover  property  or 


its  value  when  delivered  under  such 
contract,  and  to  recover  for  serv- 
ices rendered  under  such  contract, 
rests  upon  ground  other  than  the 
validity  of  the  contract.  Such  re- 
covery is  not  for  breach  of  contract ; 
it  rests  upon  the  ground  that  the 
defendant  has  unjustly  enriched 
I  himself  at  the  plaintiff's  expense. 
Browne  on  Stat,  of  Frauds,  118, 
124  ;  Keener  on  Quasi  Contracts, 
231,  277,  So  long  as  the  parties  to 
a  parol  contract,  within  the  statute, 
recognize  it  and  consent  to  it,  the 
court  can  not  voluntarily  annul  it, 
nor  can  a  stranger  complain  of  it. 
Dawson  v.  Ellis,  1  Jac.  &  W.  524 ; 
Cahill  V.  Bigelow,  18  Pick.  369; 
Clary  v.  Marshall,  5  B.  Mon.  269  ; 
Jacob  V.  Smith,  5  J.  J.  Marsh.  380  ; 
Mitchell  V.  King,  77  111.  462; 
Brakefield  v.  Anderson,  87  Tenn. 
206.  In  this  last  case,  the  court 
decreed  specific  performance  of  a 
parol  contract  for  the  sale  of  lands, 
for  the  reason  that  the  parties 
agreed  as  to  the  terms  of  the  con- 
tract, and  neither  relied  upon  the 
statute.  Cf.  Newton  v.  Swazey,  8 
N.  H.  9  ;  Baker  v.  HoUobaugh,  15 
Ark.  322.  Where  there  has  been  a 
breach  of  an  oral  contract,  and  a 
memorandum  thereafter  made,  an 
action  may  be  maintained  for  the 
breach.  Bird  v.  Munroe,  66  Me. 
337.  And  an  oral  contract,  within 
the  statute  when  made,  is  action- 
able after  the  repeal  of  that  part  of 
the  statute  embracing  it.  Per 
Dickey,  J.,  in  Work  v.  Cowhick,  81 
111.  317.  It  has  been  held,  also, 
that  neither  the  lex  loci  contractus 
nor  the  lex  loci  solutionis,  but  the 
lex  fori,  controls  ;  and  that  a  con- 
tract not  within  the  statute  of  the 


§335 


GENERAL  RULES  OF  STATEMENT. 


326 


particular  statute,  and  tlie  averments  of  the  complaint ;  but 
the  fpUowing  will  generally  be  a  safe  guide :  "  Neither  the 


place  where  made,  or  where  it  is 
to  be  executed,  if  within  the  statute 
of  the  place  where  it  is  sought  to 
be  enforced,  is  obnoxious  to  the  de- 
fense of  such  statute.  Sto.  Confl. 
of  Laws,  576,  note ;  Leroux  v. 
Brown,  12  C.  B.  801 ;  Kleeman  v, 
Collins,  9  Bush,  460 ;  Dacosta  v. 
Davis,  24  N.  J.  L.  319 ;  Brown  on 
Stat.  Frauds,  136  ;  2  Par.  on  Contr. 
692.  Cf.  Downer  v.  Chesebrough, 
36  Conn.  39  ;  Turnow  v.  Hochstad- 
ter,  7  Hun,  80  ;  Adams  v.  Clutter- 
buck,  10  Q.  B.  Div.  403.  Judge 
Bliss  seems  to  have  fallen  into  error 
on  this  point.     Bliss  PL  355. 

It  clearly  appears  from  the  fore- 
going, that  the  statute  affects,  not 
the  contract  itself,  but  the  remedy 
for  its  violation ;  that  the  statute 
does  not  operate  proprio  vigore, 
but  only  when  asserted  or  insisted 
upon  as  a  defense  ;  and  that  a  con- 
tract, legal  and  actionable  before 
the  statute,  is  legal  and  action- 
able since  the  statute,  unless  the 
party  sought  to  be  charged  re- 
sorts to  the  statute.  Keeping  in 
mind  these  settled  conclusions,  how 
can  some  of  the  foregoing  rules  be 
consistently  maintained  ?  It  would 
seem  that  the  reason  usually  given 
for  excusing  the  plaintiff  from  al- 
leging compliance  with  the  statute, 
to-wit,  that  the  law  presumes  a 
written  contract  to  be  intended,  is 
not  the  true  reason.  On  such  prin- 
ciple, a  plaintiff  should  likewise  be 
relieved  from  alleging  considera- 
tion. The  true  reason  is,  that  the 
writing  required  by  the  statute  is 
not  essential  to  the  legal  validity  of 
the  contract,  and  the  making  of 
such  writing  is  therefore  not  an 
operative     investitive     fact,     and 


should  not  be  pleaded.  The  same 
considerations  will  show  the  some- 
what fanciful  distinction  of  the 
common-law  rule  requiring  the  de- 
fendant to  allege  compliance  with 
the  statute,  when  he  pleads  a  con- 
tract within  its  operation,  to  be 
groundless  and  arbitrary. 

If  it  were  now  an  open  question, 
it  would  be  well  worth  considering 
whether,  in  view  of  the  foregoing 
corollaries,  and  of  the  theory  that 
the  statute  has  made  no  change  in 
the  rules  of  pleading,  a  complaint 
that  affirmatively  shows  the  con- 
tract to  be  oral  is  not  good  on  de- 
murrer. That  the  contract  is  oral 
is  neither  an  operative  fact  nor  an 
evidential  fact,  but  a  collateral  fact 
that  wiU  simply  disqualify  the 
plaintiff  from  making  proof,  if  the 
contract  be  denied.  But  tlie  de- 
murrer admits  the  contract,  and 
questions,  not  the  plaintiff's  ability 
to  make  proof,  but  the  legal  suffi- 
ciency of  the  operative  facts  al- 
leged ;  and  these,  undisputed,  show 
a  right  of  action. 

The  rule  authorizing  a  special 
plea  of  the  statute,  or  rather  of  the 
facts  showing  non-compliance  with 
it,  is  in  disregard  of  the  principle 
that  only  operative  facts  are  to  be 
pleaded.  Answers  of  new  matter 
in  bar  are  either  in  excuse,  or  in 
discharge  ;  and  such  plea  is  neither. 
Such  plea  is  as  if  the  defendant 
were  to  say  :  "  It  is  true  I  made  the 
contract  as  claimed  by  the  plaintiff, 
but  here  is  a  circumstance,  not  es- 
sential to  the  validit}'  of  the  con- 
tract, and  neither  in  discharge 
thereof  nor  in  excuse  for  breach 
tiiereof .  but  which,  if  insisted  upon, 
will  prevent  the  plaintiff  from  prov- 


327  MATTERS  OF  SUBSTANCE.  §336 

said  contract,  nor  any  memorandum  or  note  thereof,  was  or 
is  in  writing,  signed  by  the  defendant,  or  by  any  person  there- 
unto authorized  by  him,  according  to  the  statute  in  such  case 
made  and  provided ; "  or,  "  Said  contract,  by  its  terms,  was 
not  to  be  performed  within  one  year  from  the  making  there- 
of; and  neither  the  said  contract,  nor  any  memorandum," 
etc. ;  or,  "  The  contract  in  the  complaint  alleged  was  a  spe- 
cial promise  to  answer  for  the  debt  of  one  K.  R.  to  the  plaint- 
iff ;  and  neither  the  said  contract,  nor  any  memorandum," 
etc.  ^ 

336.  The  Statute  of  Limitations. — The  statute  of  limit- 
ations, like  the  statute  of  frauds,  is  available  by  demurrer ;  ^ 
or  by  answer  asserting  the  lapse  of  the  statutory  period  as 
new  matter  in  bar ;  ^  but,  unlike  the  statute  of  frauds,  it  is 
not  available  under  a  denial.^  One  difference  between  the 
primary  right,  the  right  to  performance  of  an  obligation,  and 
the  remedial  right,  the  right  to  enforce  performance,  is,  that 
these  rights  originate  at  different  times.  The  right  to 
performance  is  coeval  with  the  making  of  a  contract,  and 
operates  anterior  to  the  time  for  performance.  The  reme- 
dial right  does  not  arise  until  there  has  been  a  breach  of  the 
contract ;  and  then   it  is  applied  to  enforce  a  pre-existing 

ing  the  contract  which  I  admit  I  ^  Ante,  295. 

made,   and  I  do  insist  upon  it."  ^  Cf.  ante,  236. 

Such  pleading,  though  sanctioned  *  Both    statutes    relate    to    the 

by  the  authority  of  precedent,  is  at  remedy  ;  but  the  statute  of  frauds 

variance  with  the  principles  of  the  establishes  a  rule  of  evidence,  and 

science  ;  and  it  may  well  be  doubted  so   is  available  without  a  special 

whether  such  use  of  the  statute  sub-  plea,  by  the  exclusion  of  evidence 

serves  its  real  purpose,  which  is,  to  under  a  denial  ;  while  the  statute 

exclude  oral  testimony  on  the  trial  of   limitations  furnishes  a  bar  to 

of  an  issue  as  to  the  existence  or  the  recovery,  if  insisted  upon,  and  not 

terms  of  an  alleged  contract  belong-  being  inconsistent  with  the  jilaint- 

ing  to  a  designated  class.     It  would  iff's      demand,     is    not    available 

seem  that  the  only  logical  method  under  a    mere  denial.      Cf.  post, 

of  asserting  the  statute,  if  not  the  382,  for  apparent  exception  to  this 

only  one  promotive  of  its  object,  is  rule,  in  actions  for  the  recoA'ery  of 

by  objection  to  parol  evidence  in  real  property,  where    title    mider 

support  of  an  issue  as  to  the  exist-  the  statute  may  be  proved  under  a 

ence  or  the  terms  of  a  contract  sub-  denial, 
jeet  to  its  provisions. 


§338  GENERAL  RULES  OF  STATEMENT.  328 

obligation.  The  statute  of  limitations  operates  only  upon 
the  remedy ;  it  does  not  impair  the  obligation  of  a  contract, 
or  pay  a  debt,  or  create  presumption  of  payment,  but  it  be- 
comes a  statutory  bar  to  recovery,  when  asserted  and  relied 
on.^  The  mere  lapse  of  time  does  not  affect  either  the  pri- 
mary right  or  the  remedial  right,  and  does  not,  of  itself,  bar 
an  action.  The  statute  does  not  operate  proprio  vigore^  but 
only  when  asserted  by  the  party  otherwise  liable.  A  demand 
that  is  vulnerable  to  this  statutory  defense  may  nevertheless 
be  enforced,  if  the  defense  be  not  asserted ;  and  a  cause  of 
action  that  is,  on  its  face,  within  the  operation  of  the  statute 
is  good,  unless  advantage  be  taken  of  such  fact,  by  demurrer 
or  by  answer.  In  other  words,  the  statute  confers  a  privilege 
that  may  be  asserted  or  waived ;  and  it  is  waived,  if  not 
asserted. 

In  most  of  the  states,  the  statute  is  available  by  demurrer, 
when  the  pleading  asserting  a  demand  shows  affirmatively 
that  the  statutory  period  had  elapsed  before  the  commence- 
ment of  the  action,  and  does  not  allege  any  collateral 
fact  to  avoid  the  operation  of  the  statute.^  In  some  states, 
the  demurrer  must  state  specifically  the  ground  of  ob- 
jection ;  but  in  most  jurisdictions  a  general  demurrer  is 
sufficient.^ 

When  the  statement  of  a  right  of  action  shows  that  the 
statutory  period  in  such  case  has  elapsed,  any  collateral  fact 
relied  upon  to  prevent  the  bar  of  the  statute — such  as  ab- 
sence of  the  defendant,  disability  of  the  plaintiff,  a  new  prom- 
ise, or  part  payment — may  be  alleged,  and  the  operation  of 
the  statute  thereby  avoided.^  This  rule,  established  by  pre- 
cedent, would  seem  to  violate  the  rule,  resting  upon  principle, 


1  Ang.  on  Lim.  22,  and  note.  v.  Burton,  8  O.  S.  215  ;  McArdle  v. 

2  Smith  V.  Richmond,  19  Cal.  McArdle,  12  Minn.  98.  Contra,  by 
477  ;  Kennedy  v.  WiUiams,  11  statute,  Tarbox  v.  Supervisors,  34 
Minn.  314  ;  Meyer  v.  Binkleman,  5  Wis.  '558  ;  Sands  v.  St.  John,  36 
Colo.  262  ;  Hanna  v.  Jeflfersonville  Barb.  628  ;  Dezengremel  v.  Dezen- 
Ry.  Co.,  32  Ind.  113;  Seymour  v.  gremel,  24  Hun,  457. 

P.  C.  &  St.  L.  Ry.  Co.,  44  O.  S.  12.  a  Ante,  295,  and  cases  cited. 

C/.  Millsv.  Rice,  3  Neb.  76;  Huston  *  Coles   v.   Kelsey,    2    Tex.  541; 

V.  Craighead,  23  O.  S.  198  ;  Sturges  Combs  v.  Watson,  32  O.  S.  228. 


329 


MATTERS  OF  SUBSTANCE. 


§337 


that  the  plaintiff  should  not  anticipate  a  defense.  But  in 
no  other  way  could  such  collateral  fact,  excepting  a  demand 
from  the  operation  of  the  statute,  be  made  available  against 
a  demurrer.  It  must  be  axiomatic  in  pleading,  that  any 
cognate  fact  requisite  to  make  a  complaint  good  against  de- 
murrer may  rightly  be  alleged  therein. 

337.  Statute  of  Limitations,  Continued. — When  the 
complaint  is  not  open  to  demurrer,  the  statute  is  available 
by  answer  ;  but  only  by  answer  of  new  matter.*  An  answer 
of  denial  is  a  waiver  of  defense  under  the  statute.^  The 
reason  for  requiring  the  statute  to  be  specially  pleaded  is, 
that  it  is  essentially  a  confession  and  avoidance  of  the  de- 
mand to  which  it  is  addressed.^  Hence,  a  plea  that  the 
"  supposed  debt,  if  any  such  there  be,"  did  not  accrue  within 
the  statutory  period,  is  bad  for  not  confessing  the  debt.* 

The  defense  of  the  statute  is  a  personal  privilege,  and  is 
available  only  to  the  person  sought  to  be  charged,  and  to 
those  in  privity  with  him  ;  ^  and  others  can  not  assert  it  for 
them. 6 


1  Davenport  v.  Short,  17  Minn. 
24 ;  Merryman  v.  State,  5  Har.  & 
Johns.  425  ;  Robbins  v.  Harvey,  5 
Conn.  335  ;  Parker  v.  Irvine,  47  Ga. 
405. 

2  McKinney  v.  McKinney,  8  O.  S. 
423 ;  Towsley  v.  Moore,  30  O.  S. 
184  ;  Parker  v.  Berry,  12  Kan.  351. 
See  post,  382,  where  title  by  virtue 
of  the  statute  may  be  proved  under 
a  denial. 

3  7  Wait's  Ac.  &  Def .  309  ;  Mar- 
getts  V.  Bays,  4  Ad.  &  El.  489. 

<  Margetts  v.  Bays,  4  Ad.  &  El. 
489. 

^  Dawson  v.  Callaway,  18  Ga. 
573  ;  Grattan  v.  Wiggins,  23  Cal. 
16;  Lord  v.  Morris,  18  Cal.  482. 
The  rule  of  the  common  law,  that 
lapse  of  time  does  not  bar  the  right 
of  the  crown,  nullum  tempus  oc- 


currit  regi,  obtains  in  this  country, 
in  the  absence  of  express  statutory 
provision  to  the  contrary.  Lindsey 
V.  Miller,  6  Pet.  666:  Seeley  v. 
Thomas,  31  O.  S.  301,  308  ;  Hill  v. 
Josselyn,  13  S.  &  M.  597  ;  Josselyn 
v.  Stone,  28  Miss.  753.  Cf.  Fink  v, 
O'Neill,  106  U.  S.  272,  280  ;  United 
States  V.  Knight,  14  Pet.  301,  315. 
But  this  doctrine,  it  has  been  held, 
applies  only  to  the  state  at  large, 
and  not  to  its  political  subdivisions  ; 
County  of  St.  Charles  v.  Powell, 
22  Mo.  525  ;  Lessee  of  Cin.  v.  Pres. 
Ch.,  8  Ohio,  298;  Armstrong  v. 
Dalton,  4  Dev.  569  ;  and  only  when 
the  government  is  the  real  party  in 
interest,  and  not  a  mere  nominal 
part}'.  United  States  v.  Beebe, 
127  U.  S.  338;  Miller  v.  State, 
38  Ala.    600.      This    maxim    rests 


6  Allen  v.  Smith,  129  U.  S.  465  ;    R.  I.  43  ;  Smith  v.  Uncoln,  54  Vt. 
Waterman  v.  Sprague  Mfg.  Co.,  14    382. 


§  338  GENERAL  RULES  OF  STATEMENT.  330 

There  is  a  well-settled  distinction  between  a  statutory 
limitation  that  affects  only  the  remedy,  and  one  that  is  made 
a  part  of  the  right  itself.  Where  the  limitation  is  part  of 
the  right  conferred  by  the  statute,  a  complaint  under  favor 
of  such  statute  must  show  affirmatively  that  the  action  is 
brought  within  the  prescribed  time,  and  failing  to  show  this 
it  is  open  to  demurrer.^ 

Where  the  statement  of  a  demand  shows  that  the  statu- 
tory period  has  elapsed,  and  a  new  promise  is  pleaded  for  the 
purpose  of  avoiding  the  bar  of  the  statute,  the  action  is  upon 
the  original  demand,  and  not  upon  the  new  promise.^  This 
is  necessarily  so,  for,  as  before  stated,  the  statute  does  not, 
when  operative,  extinguish  the  right  of  action  ;  and  the  new 
promise  simply  avoids  its  operation.  Hence,  when  the 
statute  is  pleaded,  the  plaintiff  may  reply  the  new  promise, 
and  the  reply  will  not  be  a  departure.'^ 

338.  Statute  of  Limitations,  Continued. — Following 
the  maxim  conventio  vincit  legem,  the  courts  have  held  that 
parties  may,  by  contract,  fix  a  shorter  time  for  the  bringing 
of  an  action  than  that  fixed  by  the  statute.*  And  it  has  been 
held  that,  inasmuch  as  the  statute  is  for  the  benefit  of  indi- 
viduals, and  not  to  secure  general  objects  of  policy  or  morals, 
its  protection  may  be  waived  by  an  agreement  not  to  assert 
it,  provided    the   plaintiff   has,   pursuant  to  the  agreement, 

upon  the  ground  that  no    laches  Tatton,    16    East,    420  ;    Boyd    v. 

shall    be  imputed    to    the    sover-  Hurlbut,  41    Mo.    264 ;  Upton    v. 

eign,    and   not    upon    any  notion  Else,    12    Moore,    303  ;    Little    v. 

of  prerogative.     It  is  a  great  prin-  Blunt,  9  Pick.  488.    Contra,  Minter 

ciple  of  public    policy,    that    the  v.  Broach,  6  Ga.  21  ;  Sims  v.  Rad- 

public    interest     shall    not   suffer  cliffe,  3  Rich.  (S.  C.)  287  ;  Coles  v. 

by  the    laches  of    public    officers.  Kelsey,  3  Tex.  541  ;  Kampshall  v. 

Matthews,  J.,  in  Fink  v.  O'Neill,  Goodman,  6  McLean,  189. 

106  U.  S.  272.  ^  Ang.  on  Lim.  288. 

1  7  Wait's  Ac.  &  Def.  308  ;  De  *  Wolf  v.  W.  U.  Tel.  Co.,  62  Pa. 
Beauvoir  v.  Owen,  5  Exch.  166  ;  St.  83  ;  s.  C.  1  Am.  Rep.  387  ;  Kil- 
Per  Brinkerhoff,  J.,  in  Davis  v.  lips  v.  Put.  Fire  Ins.  Co.,  28  Wis. 
Hines,  6  O.  S.  473.  472,  holding  that  delay  in  bringing 

2  Ang.  on  Lim.  288  ;  Smith  v.  the  suit,  caused  by  acts  of  the  de- 
Richmond,  19  Cal.  476 ;  Coffin  v.  fendant,  should  be  added  to  the 
Secor,  40  O.  S.  637  ;  Ilsley  v.  time  so  fixed  by  the  contract.  S.  C. 
Jewett,    3    Met.    439  ;    Leaper   v.  9  Am.  Rep.  506. 


331 


]\IATTERS  OF  SUBSTANCE. 


338 


forborne  to    sue ;  ^  the  agreement   operating  by   way  of   es- 
toppel. 

The  statute  of  limitations  is  lexfori^  and  not  lex  loci  con- 
tractus. It  is  well  settled  that  personal  contracts  are  to  have, 
everywhere,  the  same  validity,  interpretation,  and  obligatory 
force,  that  they  have  where  they  are  nrnde  or  are  to  be  exe- 
cuted;'^ and  it  is  equally  Avell  settled  that  remedies  for  the 
breach  of  contracts  are  governed  by  the  law  of  the  place  where 
the  action  therefor  is  brought.^  The  limitation  of  actions 
being  a  matter  of  process  and  remedy,  and  not  of  right  and 
obligation,  and  the  right  and  obligation  not  being  affected  by 
the  currency  of  the  statute,  it  follows  that  the  lex  fori  must 
determine  whether  the  statute  may  be  pleaded.*     The  statutes 

V,  Jemison,  9  How.  407  ;  M'Elmoyle 
V.  Cohen,  13  Pet.  313;  Bulger  v. 
Roche,  11  Pick.  36,  where  a  debt 
was  contracted  in  a  foreign  coun- 
try, between  subjects  thereof,  who 
resided  there  until  the  debt  was 
barred  by  the  law  of  that  country, 
and  then  removed  to  Massachusetts, 
where  an  action  was  brought,  and 
it  was  held,  that  the  law  of  the 
forum  could  not  be  made  available 
until  the  parties  had  resided  in  the 
commonwealth  the  prescribed  stat- 
utory period.  If  the  statute  of  the 
place  where  a  contract  is  made 
should  extinguish,  not  only  the 
remedy,  but  the  right  and  obliga- 
tion, and  declare  the  claim  a  nullity 
after  tiie  lapse  of  the  prescribed 
period  ;  and  if  the  parties,  after 
residing  within  such  jurisdiction 
during  the  whole  of  that  period, 
should  remove  to  another  state, 
whetlier  the  lex  loci  contractus 
could  there  be  pleaded  in  extin- 
guishment of  the  right  and  obliga- 
tion, qucere.  Sto.  Confl.  of  Laws, 
583  ;  Per  Lord  Brougham,  in  Don 
v.  Lippman,  5  Clark  &  F.  16 ;  Per 
TiNDAL,  G.  J.,  in  Huber  v.  Steiner. 
2  Bing.  (N.  C.)  202. 


1  2  Herm.  on  Estop.  825  ;  Gay- 
lord  V.  VanLoan,  15  Wend.  308 ; 
Utica  Ins.  Co.  v.  Bloodgood,  4 
Wend.  652;  Quick  v.  Codies,  39 
N.  J.  L.  11  ;  Warren  v.  Walker,  23 
Me.  453  ;  Webber  v.  Williams 
College,  23  Pick.  302;  Lade  v. 
Trill,  6  Jur.  273.  Cf.  Cowart  v. 
Perrine,  21  N.  J.  Eq.  101 ;  Randon 
v.  Toby,  11  How.  493  ;  Hodgdon  v. 
Chase,  29  Me.  47.  Contra,  Crane  v. 
French,  38  Miss.  503,  holding  that 
the  statute  not  only  confers  a  priv- 
ilege, but  rests  upon  grounds  of 
public  policy,  which  would  be  con- 
travened by  enforcing  sucli  agree- 
ment. Cf.  Dubois  V.  Campau,  37 
Mich.  248. 

2  2  Par.  on  Contr.  570,  571  ;  Ang. 
on  Lim.  64 ;  Pearsall  v.  D wight, 
2  Mass.  84  ;  Jones  v.  Jones,  18  Ala. 
248. 

8  Ang.  on  Lim.  65  ;  2  Par.  on 
Contr.  590  ;  Sto.  Confl.  of  Laws, 
556  ;  Jones  v.  Jones,  18  Ala.  248  ; 
Perry  v.  Lewis,  6  Fla.  555. 

*  Story  Confl.  of  Laws,  576  ; 
Jones  V.  Jones,  18  Ala.  248  ;  Sloan 
V.  Waugh,  18  Iowa,  224 ;  Nash  v. 
Tupper,  1  Caines,  402  ;  Perry  v. 
Lewis,  6  Fla.  555  ;  Leroy  v.  Crown- 
inshield,  2  Mason,  151  ;  Townsend 


§  338       GENERAL  RULES  OF  STATEMENT.         332 

of  some  states  provide  that  actions  shall  be  barred  therein,  if 
they  would  be  barred  by  the  law  of  the  state  where  the  right 
of  action  arose.  To  make  the  foreign  statute  available  in  such 
case,  both  the  statute  and  the  facts  which  make  it  operative 
must  be  specially  pleaded. ^ 

The  statute  of  limitations  is  regarded  as  a  strict  defense, 
and  if  omitted,  the  courts  will  not,  as  a  rule,  allow  it  to  be 
asserted  by  araendraent,^  though  there  is  a  growing  tend- 
ency to  recede  from  this  rule,  and  to  allow  the  statute  to  be 
asserted  by  amendment ;  ^  especially  where  there  has  been 
accidental  default,  or  where  the  statute  is  to  be  used  as  an 
instrument  of  justice,  and  not  of  mere  strategy."* 

The  approved  form  for  pleading  the  statute,  at  common 
law,  was,  actio  non  accrevit  infra  \_sex]  annosJ*  Under  the 
new  procedure  there  are  no  established  forms  of  pleading ; 
but  this  common-law  form  is  sufficient  in  substance,  and  is 
generally  adopted.  It  will,  therefore,  generally  be  sufficient 
to  allege  "  that  the  right  of  action  stated  in  the  complaint  did 
not  accrue  within  years  next  before  the  commence- 

ment of  this  action."  The  defendant  need  not  negative 
the  exceptions  in  the  statute ;  for  these,  if  relied  on,  must 
be  replied  by  the  plaintiff.^ 

^  Hoyt  V.  McNeil,  13  Minn.  390  ;  coixrt  opened  up  a  judgment  to  let 

Gillett  V.  Hill,  32  Iowa,   220.  Cf.  the  defendant  assert  the  bar  of  the 

Whelan  v.  Kinsley,  26  O.  S.   131 ;  statute.     Cf.  Union  Nat.   Bank  v. 

Headington  v.  Neff,  7  Ohio  (Pt.  1),  Bassett,  3  Abb.  Pr.  N.  S.  359  ;  Mac 

229.  queen    v.    Babcock,    13  Abb.    Pr. 

2  Sheets  v.  Baldwin,  12  Ohio,  268  ;  Gourlay  v.  Button,  10  Wend. 
120  :  Newson  v.  Ran,  18  Ohio,  240  ;  595.  An  executor  is  not  bound  to 
Beach  v.  Fulton  Bank,  3  Wend,  plead  the  general  statute,  if  lie  be- 
574 ;  Jackson  v.  Varick,  2  Wend,  lieves  the  claim  a  just  one  ;  Walter 
294 ;  Plumer  v.  Clarke,  59  Wis.  v.  RadcUflfe,  2  Des.  (S.  C.)  577 ; 
646  •  Sagory  v.  N.  Y.  &  N.  H.  Ry.  Leigh  v.  Smith,  3  Ired.  Ch.  442 ; 
Co.,  21  How,  Pr.  455:  Colt V.  Skin-  though  he  is  bound  to  plead  a 
ner,  7  Cow.  401  ;  Wolcott  v.  Farlan,  statute  which  applies  to  him  in 
6  Hill,  227.  that  capacity.     Gookin  v.  Sanborn, 

3  Barnett  v.  Meyer,  10  Hun,  109  ;  3  N.  H.  491. 

Gilchrist  v.  Gilchrist,  44  How.  Pr.  *  Pegram  v.  Stoltz,  67  N.  C.  144. 

317  ;  EUengers  Appeal,  114  Pa.  St.  6  steph.  PL  393  ;  Ang.  on  Lim. 

505  ;  Mitchell  v.  Campbell,  14  Oreg.  287. 

454.     In  the  last  two  cases,   the  *  Ford  v.  Babcock.  2  Sandf.  518; 


333  MATTERS  OF  SUBSTANCE.  §  339 

339.  Exceptions    and     Provisos    Distinguished. — In 

actions  under  favor  of  a  statute  containing  an  exception, 
as  distinguished  from  a  proviso,  the  comphiint  should  show 
affirmatively  that  the  case  does  not  fall  within  the  exception.^ 
A  proviso,  on  the  other  hand,  is  matter  of  defense,  and  need 
not  be  negatived  in  the  complaint.  Exceptions  and  provisos 
are  alike  in  this,  that  they  both  exempt  something  from  the 
operation  of  the  statute ;  they  differ  in  this,  that  an  excep- 
tion exempts  absolutely  from  the  operation  of  the  statute, 
while  a  proviso  generally  defeats  the  operation  of  the  statute 
conditionally.  The  former  is  generally  a  part  of  the  enacting 
clause,  and  is  of  general  application ;  the  latter  is  generally 
engrafted  on  a  preceding  enactment,  and  is  added  for  the 
purpose  of  taking  special  cases  out  of  a  general  class,  or  to 
guard  against  misinterpretation.^ 

The  requirement  that  an  exception  must  be  negatived, 
though  technical,  is  not  arbitrary,  and  rests  upon  sound  prin- 
ciple. An  exception  is  an  exemption  so  incorporated  with 
the  enacting  clause  as  to  enter  into  its  identity,  and  the  one 
can  not  be  stated  Avithout  the  other  ;  in  other  words,  the  ad- 
versary party  can  not  be  shown  to  be  within  the  statute,  un- 
less it  appear  also  that  he  is  not  within  the  exception.  For 
example,  if  a  statute  provide  that  "  no  person  shall  do  any 
work,  except  works  of  necessity,  on  Sunday ;  but  this  law 
shall  not  extend  to  those  who  conscientiously  observe  the 
seventh  day  of  the  week  as  the  Sabbath,"  the  language 
exempting  works  of  necessity  would  be  part  of  the  descrip- 
tion of  the  thing  prohibited.  It  is  as  if  the  statute  should, 
in  totidem  verbis^  prohibit  unnecessary  labor  on  Sunday.     The 

Walker  v.  B.  R.  of  Miss.,  2  Eng.  The  State,  4  Ind.  602  ;  Broom  Max. 

(Ark.)  503.  677  ;  Stepli  PL  (Heard's  Ed.)  443. 

1  Church  V.  Utica,  etc.,Ry.  Co.,  Cf.  Faribault  v.  Hulett,  10  Minn. 

6  Barb.  313  ;  Walker  v.  Johnson,  2  30. 

McLean,  92  ;  Vavasour  v.  Ormrod,  ^  Sedg.  on   Constr.   of  Stat.    50, 

6B.  &C.  430;  Toledo,  etc.,  Ry.  Co.,  93;   Suth.   on  Stat.    Constr.    222; 

V,  Pence,  68   111.   524  ;  Spieres  v.  Johnson,  J.,  in  Waffle  v.  Goble,  53 

Parker,  1  T.  R.  141 ;  Hoffman  v.  Barb.  517,  522  ;  Story,  J.,  in  Minis 

Peters,  51  N.  J.  L.  244  ;  Blasdell  v.  v.  United  States,  15  Pet.  423,  445  ; 

State,  5  Tex,  App.  263  ;  Foster  v.  State  v.  Stapp,  29  Iowa,  551. 
Hazen,  12  Barb.  547  ;   Brutton  v. 


§  340  GENERAL  RULES  OF  STATEMENT.  334. 

statutory  prohibition  can  not  be  stated,  without  stating  the 
exception  ;  and  a  viokition  of  the  statute  can  not  be  affirmed, 
without  a  negation  of  the  exception.  Not  so  as  to  the  other 
exemption  supposed.  That  is  not  descriptive  of  the  thing 
prohibited,  but  is  in  the  nature  of  a  privilege  or  excuse,  and 
need  not  be  referred  to  in  alleging  a  violation  of  the  statute. 
It  is  matter  of  defense,  to  be  shown  by  the  other  party .^ 

340.  Foreign  Laws  Must  be  Pleaded. — Foreign  laws 
are  matters  of  fact,  and  the  procedure  incident  to  the  ascer- 
tainment of  them  is  governed  accordingly.  They  must  be 
alleged  as  facts,  they  must  be  proved  by  evidence,  and  the  evi- 
dence weighed  by  the  jury.  The  courts  take  judicial  notice 
of  public  domestic  statutes,  and  these  need  not  be  pleaded ; 
but  private  legislative  acts,  like  all  foreign  statutes,  must  be 
pleaded  and  proved.^  The  several  states  are,  in  this  regard, 
foreign  to  each  other ;  but  the  state  courts  will  take  judicial 
cognizance  of  the  public  acts  of  the  United  States,^  and  the 
courts  of  the  United  States  will  take  like  cognizance  of  the 
laws  of  the  states  and  territories.*  International  law,  being 
of  universal  application,^  and  the  law  merchant,  so  far  as  it 
is  part  of  the  general  law  of  the  land,^  will  be  judicially 
noticed,  and  need  not  be  pleaded ;  but  the  particular  laws 
of  a   foreign   state   relating   to   commercial  paper — such   as 

1  Billigheimer  v.  State,  32  O.  S.  452 ;  Papin  v.  Ryan,  32  Mo.  21  ; 
435.  Cf.  Stanglein  v.  State,  17  O.  S.  Dale  v.  Wilson,  16  Minn.  525  ; 
453 ;  Hirn  v.  State,  1  O.  S.  15  ;  Mims  v.  Swartz,  37  Tex.  13  :  Bird 
Fleming  v.  People,  27  N.  Y.  329  ;  v.  Coram.,  21  Gratt.  800;  Mont- 
Harris  V.  White,  81  N.  Y.  532.  gomery  v.  Deeley,  3  Wis.  709,  712; 

2  Broad  St.  Hotel  Co.  v.  Weaver,  *  Jasper  v.  Porter,  2  McLean, 
57  Ala.  26 ;  Ellis  v.  Eastman,  32  579 ;  Jones  v.  Hays,  4  McLean, 
Cal.  447  ;  Atchison,  etc.,  Ry.  Co.  V.  521  ;  Smith  v.  Tallapoosa  Co.,  3 
Blackshire,  10  Kan.  477  ;  Proprie-  Woods,  574  ;  Elwood  v.  Flannigan, 
tors  V.  Call,  1  Mass.  483  ;  Timlow  104  U.  S.  562  ;  Hinde  v.  Vattier,  5 
V.  Phila.,etc.,  Ry.  Co.,  99  Pa.  St.  Pet.  398.  Cf.  Owings  v.  Hull,  9 
284 ;  Hailes  v.  State,  9  Tex.  App.  Pet.  607. 

170;  Horn  V.Chicago,  etc.,  Ry.  Co.,  6  The  Scotia,  14  Wall.  170.    Cf. 

38  Wis.   463.     In  some  states  the  Ocean  Ins.  Co.  v.  Francis,  2  Wend, 

legislature  has  provided  that  private  64;  s.  c.  19  Am.  Dec.  549. 

statutes  shall  be  judicially  noticed.  ^  Ereskine  v.  Murray,  2  Ld.  Ray. 

'Dickenson  v.  Breeden,  30  111.  1542;   Edie  v.   East  India  Co.,  3 

279  ;  Wright  v.  Hawkins,  28  Tex.  Burr.  1226,  1228. 


335  MATTERS  OF  SUBSTANCE.  §  341 

the   allowance   of   days    of   grace — must     be    alleged     and 
proved. 1 

Courts,  excepting  those  of  the  particular  municipality,  do 
not  take  judicial  notice  of  municipal  ordinances ;  and  where 
such  ordinance  is  relied  upon,  except  in  the  municipal  courts, 
it  must  be  alleged  and  proved.^  But  where  an  action  for  the 
violation  of  a  city  ordinance  is  commenced  and  prosecuted  to 
conviction  and  sentence  before  the  police  judge  of  such  city, 
and  is  then  appealed  by  the  defendant  to  the  district  court, 
the  latter  court  should  take  judicial  notice  both  of  the  incor- 
poration of  the  city  and  of  the  existence  and  substance  of  its 
ordinance  involved.^  The  manner  of  pleading  foreign  laws 
will  properly  be  considered  in  the  next  chapter.* 

II.   OF  MATTERS  NOT  TO  BE  STATED. 

341.  Facts  of  which  the  Court  will  Take  Judicial 
Notice. — In  the  presentation  of  causes  of  action  and  defenses, 
not  only  must  the  pleader  be  confined  to  a  statement  of 
operative  facts  as  distinguished  from  evidential  facts,  and  to 
statements  and  denials  that  are  relevant  and  material,  but 
there  are  some  operative  facts,  both  relevant  and  material, 
that  need  not  be  stated,  because  they  come  properly  to  the 
attention  of  the  court  and  the  parties,  without  being  either 
pleaded  or  proved.  There  is  a  large  class  of  facts  that  will 
be  "  judicially  noticed  "  by  the  tribunal  wherein  an  action  in 
which  they  become  material  is  pending.  This  judicial  cogni- 
zance rests  upon  the  expediency  of  dispensing  with  the  alle- 
gation and  proof  of  matters  so  well  established  as  to  be  com- 
monly known,  and  not  to  admit  of  controversy.     A  compre- 

1  Bowen  v.  Newell,  13  N.  Y.  290.  ona  v.  Burke,  23  Minn.  254  ;  State 

2  Mooney  v.  Kennett,  19  Mo.  v.  Oddle,  42  Mo.  210  ;  Butler  v. 
551  ;  Case  v.  Mobile,  30  Ala.  538  ;  Robinson.  75  Mo.  193 ;  Porter  v. 
Napa  V.  Easterby,  61  Cal.  509  ;  Waring,  69  N.  Y.  250 ;  Goodrich  v. 
Chicago,  etc.,  Ry.  Co.  v.  Klauber,  9  Brown,  30  Iowa,  291.  Cf.  Pomeroy 
m.  App.  613  :  Garvin  v.  Wells,  8  v.  Lappens,  9  Oreg.  363. 

Iowa,   286  ;   Lucker  v.  Coram.,  4  »  Solomon   v.   Hughes,  34  Kan. 

Bush,  440  ;  Hassard  v.   Municipal-  211. 

ity,  7  La.  Ann.  495  ;  New  Orleans  *  Post,  878. 

v.  Labatt,  33  La.  Ann.  107 ;  Win- 


§  341  GENERAL  RULES  OF  STATEMENT.  335 

hensive  statement  of  the  rule  is,  that  "  courts  will  generally 
take  notice  of  whatever  ought  to  be  generally  known  with- 
in the  limits  of  their  jurisdiction."  ^  Facts  of  which  the 
court  will  take  judicial  notice  are  not  to  be  pleaded,  issue 
can  not  be  joined  upon  them,^  and  no  proof  thereof  can  be 
required.3  On  demurrer,  a  pleading  is  to  be  read  as  if  such 
matters  were  stated  therein  ;  ^  and  an  allegation  contrary  ta 
a  fact  of  which  the  court  will  take  judicial  notice  is  not  ad- 
mitted by  demurrer.^ 

As  stated  in  the  last  preceding  section,  state  courts  will 
take  judicial  notice  of  the  public  or  general  statutes  of  the 
state,  of  the  public  statutes  of  the  United  States,  and  of  the 
law  of  nations.  An  act  of  the  legislature  incorporating  a 
municipal  corporation  is  a  public  act,  and  will  be  judicially 
noticed;®  but  where  a  town  or  city  has  been  incorporated 
under  a  general  statute,  authorizing  towns  and  cities  to 
become  incorporated  by  complying  with  certain  conditions, 
the  courts  will  not  take  judicial  notice  that  such  town  or 
city  has  become  incorporated  under  such  law,^  nor  that  it  is 
of  a  particular  class  or  grade.^     Treaties,  being  public  laws, 

1  1  Greenl.  Ev.  6.     But  the  per-    Trustees  N.  Y.  &  B.  Bridge,  96  N. 
sonal  knowledge  of  the  judge  may    Y.  427. 

not  be  the  judicial  knowledge  of  ^  Cooke  v.  Tallman,  40  Iowa,  133  ; 

the  court ;  and  on  the  other  hand,  Atty.  General  v.  Foot,  11  Wis.  14  ; 

actual  knowledge  of  the  judge  is  Per  Vice  Chancellor,  in  Taylor  v. 

not  essential  to  his  judicial  cogniz-  Barclay,  2  Simons  Ch.  Rep.  213. 

ance  of  a  fact.     The  judge  may,  ^  Albrittin  v.  Huntsville,  60  Ala. 

when  necessary,  inform  himself  as  486  ;    Ferryman   v.   Greenville,   51 

to  any  proper  subject  of  judicial  Ala.  507 ;    Alderman  v.  Finley,  10 

notice  ;      but    this     extra-judicial  Ark.  423  ;  People  v.  Potter,  35  Cal. 

knowledge  of  a  disputable  fact  will  110;    Stier  v.  Oskaloosa,  41  Iowa, 

not  dispense  with  allegation  and  353 ;    Prell  v.   McDonald,   7  Kan. 

proof  thereof.  426  ;  Hawthorne  v.  Hoboken,  33  N. 

2  Bd.  Comrs.  v.  Burford,  93  Ind.  J.  L.  172  ;  State  v.  Murfreesboro,  11 
383 ;  Atty.  General  v.  Foote,  11  Humph.  217 ;  Briggs  v.  Whipple, 
Wis.  14  ;  s.  c.  78  Am.  Dec.  689 ;  7  Vt.  15  ;  Janesville  v.  Milwaukee 
Cooke  V.  TaUraan,  40  Iowa,  133  ;  &  Miss.  Ry.  Co.,  7  Wis.  484  ;  Alex- 
Perryman  v.  GreenvUle,  51  Ala.  ander  v.  Milwaukee,  16  Wis.  247. 
507.  ''  Hopkins  v.   Kansas  City,  etc., 

«  Secrist  V.  Petty,  109  lU.  188.  Ry.   Co.,   79    Mo.   98;    Temple  v. 

« Per    Eakl,    J.,  in    Walsh    v.    State,  15  Tex.  App.  304. 

« Bolton  V.  Cleveland,35  O.  S.  319. 


337  MATTERS  OF  SUBSTANCE.  §  342 

are  judicially  noticed  ;  ^  and  municipal  ordinances,  being  laws 
of  the  particular  municipality,  are  judicially  noticed  by  the 
municipal  courts  .^ 

342.  Facts  Judicially  Noticed,  Continued. — The  courts 
of  a  state  will  take  judicial  cognizance  of  the  civil  divi- 
sions within  the  state,  as  into  counties  and  townships, 
created  by  law ;  ^  and  will  also  take  notice  of  the  contiguity 
and  relative  positions  of  the  counties  of  the  state,*  and  of 
their  boundaries  so  far  as  established  and  pointed  out  by 
statute.* 

Courts  will  take  judicial  notice  of  the  more  obvious  and 
unvarying  events  in  the  general  course  of  nature,  the  great 
natural  features  of  the  world,  the  general  geography  of  the 
country,  the  more  notorious  facts  of  general  current  history, 
the  ordinary  computations  of  time,  and  the  coincidence  of 
days  of  the  week  with  days  of  the  month,  the  existence,  re- 
lations, symbols,  and  seals  of  civilized  nations,  the  ordinary 
meaning  of  English  words  and  phrases,  and  of  abbreviations 
in  common  use,  and  of  many  other  matters  of  common  knowl- 
edge and  general  notoriety.  There  is  some  contrariety  in 
the  views  taken  by  different  courts,  and  no  invariable  rule 


1  Howaxd  V.  Moot,  64  N.  Y.  262 ;  People  v.  Smith,  1  Cal.  9  ;  Bruma 
Montgomery  v.  Duley,  3  Wis.  709,  gim  v.  Bradshaw,  39  Cal.  40 
712 ;  United  States  v.  Reynes,  9  Wright  v.  Hawkins,  28  Tex.  452 
How.  127 ;  Baby  v.  Dubois,  1  Boston  v.  State,  5  Tex.  App.  383 
Blackf.  255.  LouisviUe,  etc.,  Ry.  Co.  v.  Hixon, 

2  State  V.  Leiber,  11  Iowa,  407  ;  101  Ind.  337. 

Conboy  v.  Iowa  City,  2  Iowa,  90.  *  Wright    v.   Hawkins,   28  Tex. 

C/.  City  of  Solomon  v.  Hughes,  24  452  ;   Boston  v.  State,  5  Tex.  App. 

Kan.  211,  where  it  is  held  that  on  383. 

appeal  of  an  action  for  the  viola-  ^  Terre    Haute,  etc. ,  Ry.   Co.   v. 

tion  of  a  city  ordinance,  begun  in  Pierce,  95  Ind.  496  ;    Indianapolis, 

the  police  court  of  the  city,  the  ap-  etc.,  Ry.  Co.  v.  Moore,  16  Ind.  43 

pellate  court  will  take  judicial  no-  Cooke  v.  Tallman,  40  Iowa,  133 

tice,  not  only  of  the  ordinance,  but  State    v.    Jackson,    39     Me.    291 

of  the  corporate  existence  of  the  Wright  v.  Hawkins,  28  Tex.  452 

city.  Stephenson  v.  Doe,  8  Blackf.  508 

'  Dickenson   v.   Breeden,  30  111.  Buckinghouse  v.   Gregg,    19    Ind 

279 ;  State  v.  Powers,  25  Conn.  48  ;  401.     C/.  Bond  v.  Perkins,  4  Heisk 

Martin  v.  Martin,  51  Me.  366  ;  Win.  364. 
Lake  Co.  v.  Young,  40  N.  H.  420 : 
22 


g  343  GENERAL  RULES  OF  STATEMENT.  338 

can  be  laid  down  as  to  what  matters  of  fact  will  be  noticed 
without  allegation  and  proof.^ 

343.  The  Law,  and  Legal  Conclusions. — It  has  hereto- 
fore been  shown  that  the  law  is  not  to  be  stated  in  any  plead- 
ing ;  and  the  reasons  for  this  exclusion  have  been  given.^  It 
remains  only  to  illustrate  and  exemplify  the  rule,  which,  it 
will  appear,  is  commonly  violated  by  the  blending  of  law  and 
fact,  or  by  the  statement  of  legal  conclusions  drawn  from 
facts  not  stated,  rather  than  by  the  statement  of  abstract 
rules  of  law. 

An  allegation  that  one  is  the  "  heir,"  or  the  "  sole  heir," 
of  another,  when  asserted  as  the  ground  of  a  claim,  is  a  con- 
clusion of  law;  the  facts  of  exclusive  near  relationship  should 
be  stated,  so  that  the  legal  relation  may  appear.  ^  An  al- 
legation that  one  is  "  indebted  "  to  another  is  a  legal  conclu- 
sion, and  insufficient  on  demurrer,  except  where  sanctioned 
by  statute.^  The  same  is  true  of  an  allegation  that  the 
defendant  was  »"  bound  to  repair,"  when  made  to  show  the 
liability  sought  to  be  enforced,^  or  that  a  certain  sum  is 
*due,"  when  made  as  an  assertion  of  the  indebtedness  sued 
on,^  unless  sanctioned  by  statute.  But  an  averment  in 
a  complaint  on  a  promissory  note,  that  a  certain  sum 
*'  is  due  as  principal  and  interest  on  said  note,"  has  been 
held  equivalent  to  an  averment  that  the  note  remains 
unpaid.'^  An  allegation  that  it  was  "the  duty  of  the 
defendant "  to  keep  a  certain  place  in  safe  condition ;  ^ 
that    "  the   defendant  was,    by   law,    bound    to    fence     its 

1  For  a  fuller  and  more  detailed  Ter.  112  ;  Gray  v.  Kendall,  10  Abb. 
treatment  of  the  topic,  see  1  Pr.  66.  Cf.  Crane  v.  Lipscomb,  24 
Greenl.  Ev.  4-6  a  ;  Wade  on  Notice,     S.  C.  430,  437. 

1403-1417  ;   1  Whar.  Civ.  Ev.  276-        ^  Casey  v.  Mann,  5  Abb.  Pr.  91. 
340;    89  Am.  Dec.   663-697,  nota ;        ^  Tookerv.  Amoux,  76  N.  Y.  397  ; 

Suth.  on  Stat.  Constr.  293-306.  Tucker  v.  Lovejoy,    73   Wis.    66 ; 

2  Ante,  33,  184.  Roberts  v.  Treadwell,  50  Cal.  520. 

3  Treasurer  v.  Hall,  3  Ohio,  225  ;  Contra,  Allen  v.  Patterson,  7  N.  Y. 
Waldsmith  v.  Waldsmith,  2  Ohio,  476. 

156  ;  Lame  v.  Hays,  7  Bush,  50.  ''  Downey  v.   Whittenberger,  60 

*  Millard  v.    Baldwin,   69  Mass.  Ind.  188. 

484 ;   Holgate  v.  Broome,  8  Minn.  ^  Samminis  v.  Wilhelm,  6  Ohio 

243 ;    Roeder  v.  Brown,  1   Wash.  C.  C.  Rep.  565. 


339  MATTERS  OF  SUBSTANCE.  §  344 

road ; "  *  a  general  allegation  of  reasonable  notice ;  ^  that 
certain  property  is  by  the  law  exempt,  and  not  stating 
the  circumstances  requisite  to  exempt  it;^  that  plaintiff's, 
title  by  virtue  of  a  tax  sale  is  invalid  because  of  irregularity 
in  the  notice  of  sale,  and  not  stating  the  irregularity  ;  *  that 
the  plaintiff  "  was  entitled  to  the  exclusive  possession  of  the 
premises,"  without  asserting  other  ground  of  title  or  of  pos- 
session, in  an  action  for  interference  with  plaintiff's  posses- 
sion ;  ^  that  one  was  "  entitled  to  vote  "  at  an  election  ;  ^  and 
that  "'  defendant  took  the  land  subject  to  the  mortgage  ;  "  ^ 
have  been  held  to  be  mere  conclusions  of  law. 

An  allegation  that  the  plaintiff  is  not  the  real  party  in 
interest,  or  that  some  person  other  than  the  plaintiff  is  the 
real  party  in  interest,  is  a  violation  of  the  rule  under  con- 
sideration. So,  also,  is  an  allegation  that  the  defendant  was 
induced  to  make  the  engagement  sued  on  by  fraud,  or  by 
coercion,  or  by  duress. 

In  actions  on  negotiable  instruments,  an  allegation  that  the 
plaintiff  is  not  the  bona  fide  holder  is  not  sufficient.  The 
facts  showing  the  male  fides  should  be  stated.^ 

344.  Conclusions  of  Law,  Continued. — In  an  action  to 
restrain  destructive  trespass,  an  allegation  that  the  appre- 
hended injury  will  be  "  irreparable  "  is  a  conclusion  of  law ; 
facts  should  be  stated,  showing  that  such  would  be  the 
character  of  the  injury.*  Where  a  complaint  to  enjoin  the 
collection  of  a  ditch  assessment  by  sale  of  plaintiff's  lands 
alleged  that  there  had  been  no  proper  or  legal  notice  of  the 
proceedings  before  the  commissioners,  the  allegation  was  held 
to  be  a  mere  legal  conclusion.i^*     It  was  pregnant  with  the 

1  B.  &  O.  Ry.  Co.  V.  Wilson,  31  170.  Cf.  Patterson  v.  Adams,  7 
O.  S.  555.  HiU,  126. 

2  McCormick  v.  Tate,  20  111.  334 ;  «  Brown  v.  Phillips,  71  Wis.  239. 
Cruger  V.  Hudson  River  Ry.  Co.,  12  '  Wormouth  v.  Hatch,  33  Cal. 
N.  Y.  190.  121. 

«  Quinney  v.  Stockbridge,  33  Wis.  ^  \  Dan.  Neg.  Instr.  770  ;   Uther 

505.  V.  Rich,  10  Ad.  &  El.  784. 

*  Webb  v.  Bidwell,  15  Minn.  479,  «  Van  Wert  v.  Wesbter,  31  O.  S. 

485.  420. 

8  Garner  v.  McCnllough,  48  Mo.  i'^  Harris  v.  Ross,  Treas.,  112  Ind. 

318  ;  Sheridan  v.  Jackson,  72  N.  Y.  314. 


8  345  GENERAL  RULES  OF  STATEMENT.  340 

implication  that  there  had  been  notice  ;  and,  until  the 
contraiy  should  appear,  it  must  be  presumed  to  have  been 
such  notice  as  the  law  required. 

In  a  complaint  for  specific  performance  of  a  contract  to 
convey,  and  where  the  plaintiff  was,  by  the  terms  of  the  con- 
tract, to  give  notes  and  a  mortgage  for  the  purchase-money, 
the  general  allegation,  "  that  he  has  offered,  and  has  always 
been  ready  and  willing  to  comply  with  his  contract,"  is  not 
sufficient.  He  should  state  the  facts  constituting  what  he 
says  was  an  offer.^  The  averment  that  plaintiff  is  "  lawfully 
enfranchised  and  the  legal  owner  "  of  a  certain  briJ'ge,  with- 
out setting  forth  the  facts  on  which  the  averment  is  based,  is 
good  on  demurrer.  The  averment  is  not  a  conclusion  of 
law,  and  the  facts  to  sustain  it  are  evidential.^  It  would 
seem,  upon  both  principle  and  authority,  that  where  a  statute 
requires  the  doing  of  certain  things  as  a  condition  precedent 
to  the  acquisition  of  a  right  or  remedy  conferred  by  the 
statute,  a  pleading  asserting  such  right  or  pursuing  such 
remedy  should  allege  the  doing  of  the  several  acts  prescribed 
by  the  statute.^ 

345.  Conclusions  of  Law,  Continued. — As  to  whether 
the  allegation  that  an  act  was  "  duly  "  done,  without  stating 
the  particulars,  is  an  allegation  of  fact,  or  of  a  legal  con- 
clusion, the  authorities  are  not  at  one.  Perhaps  the  general 
rule  at  common  law  and  in  equity  is,  that  such  allegation  is 
a  mere  conclusion  of  law,  and  is  insufficient  on  demurrer  ;  * 

^  Hart  V.  McClellan,  41  Ala.  251.  elusion  of  fact.     Whether  the  steps 

2  Bucki  V.  Cone,  25  Fla.  1.  legally  requisite  have  been  taken, 

8  Oreg.  Cent.  Ry.  Co.  v.  Scoggin,  is  a  question  of  fact;  whether  the 

3  Oreg.    161  ;    Rhoda  v.  Alameda  steps  taken  are  legally  sufficient,  is 

Co.,    52    Cal.     350 ;     Kechler    v.  a  question  of  law.     So  the  allega- 

Stumme,   36  N.   Y.    Sup.  Ct.  337.  tion  as  in  this  case,  that  due  pro- 

Contra,  McCorkle  v.  Herrmann,  22  ceedings  were  taken,  etc.,  embodies 

N.  Y.  St.  Rep.  519,  holding  that  an  more  of  fact  than  would  the  allega- 

aUegation    that    due    proceedings  tion  that  hens  were  duly  obtained, 

were  taken  by  which  mechanics'  *  Gillett  v.  Falrchild,  4  Den.  80 ; 

liens  were  filed,  and  not  stating  the  Beach  v.  King,  17  Wend.  197  ;  Sto. 

several  steps  by  which  the  liens  Eq.  PI.  251 ;  Cruger  v.  HalHday,  11 

were    established,    is    not  demur-  Paige,  320  ;  Trow  City  Directory  v. 

Table,  because,  while  it  alleges  a  Curtin,  36  Fed.  Rep.  829  ;  Rhoda  v. 

conclusion  of  law,  it  is  also  a  con-  Alameda  Co.,  52  Cal.  350.     Contra, 


341  MATTERS  OF  SUiiSTANUE.  g  345 

but  a  contrary  view  has  generally  obtained  under  tbe  new- 
procedure.  An  allegation  that  the  recognizance  sued  on  was 
by  the  court  adjudged  forfeited,  and  the  forfeiture  "duly 
entered  of  record,"  and  not  stating  that  the  surety  was  called, 
and  required  to  bring  in  the  body  of  his  principal :  ^  that 
plaintiff  "  duly  protested  in  writing,"  and  '^  duly  appealed ;  "  2 
that  a  mortgage  was  "duly  assigned"  to  the  plaintiff ;  ^ 
tliat  plaintiff  "  duly  assigned  "  a  promissory  note  to  defend- 
ant ;  ^  that  certain  taxes  were  "  duly  levied  and  assessed  "  ;  ^ 
that  a  city  ordinance  was  "  duly  passed  ";  ^  that  a  certain 
surrogate  of  New  Jersey  had  jurisdiction,  and  was  "  duly 
authorized  "  by  the  laws  of  that  state  to  issue  certain  letters 
of  administration ;  '^  that  a  certain  corporation  was  "  duly 
organized  under  the  laws  "  of  a  certain  state  ;  ^  that  the 
plaintiff  was  "  duly  appointed  receiver  ;"  ^  that  the  plaintiff 
was  "  duly  sworn,  and  did  take  his  corporal  oath ;  "  i^  and 
that  the  defendant  had  been  "  duly  discharged  ;  "  ^^  have 
been  held  to  be  sufficient  in  matter  of  substance.  And  an 
averment  that  a  meeting  was  "  duly  convened,"  implies  that 
it  was  regularly  convened  ;  and,  if  necessary  to  its  regularity, 
that  it  was  an  adjourned  meeting.^  In  an  action  to  compel 
a  county  treasurer  to  levy  and  collect  a  tax  voted  to  aid  in 
building  a  railroad,  an  allegation  that  plaintiff  had  made  the 
required  proof  of  compliance  with  the  conditions  upon  which 
the  tax  was  to  be  paid,  was  held  good  on  demurrer.^^  But 
in  an  action  based  on  an  application  and  affidavit  made  in  a 
certain  office,  an  allegation  that  plaintiff  filed  his  "  affidavit 

Polly  V.  Saratoga,  etc.,  Ry.  Co.,  9  ^  Schluler  v.  Bow.  Sav.  Bank,  117 

Barb.  449.     Cf.  Burdett  v.  Greer,  8  N.  Y.  125. 

Pick.  108 ;   Sewall  v.  Valentine,  6  ^  Smith  v.  Sewing  Machine  Co., 

Pick.  276.  26  O.  S.  562  ;  LoriUard  v.  Clyde,  86 

1  Rubush  V.  State,  112  Ind.  107.  N.  Y.  384. 

2  Robertson  v.  Perkins,  129  U.  S.  »  Cheyney  v.  Fisk,  22  How.  Pr. 
233.  236. 

8  Barthol  v.  Blakin,  34  Iowa,  452.  10  Burns  v.  People,  59  Barb.  531. 

*  Hoag  V.  Mendenhall,  19  Minn.  "  Gibson  v.  People,  5  Hun,  542. 

'  335.  12  People  v.  Walker,  23  Barb.  304. 

6  Webb  V.  Bidwell,  15  Minn.  479.  "  B.  C.  R.  &  M.  Ry.  Co.  v.  Stew- 

6  Becker  v.  Washington,  94  Mo.  art,  39  Iowa,  267. 
375. 


t^  348  GENERAL  RULES  OF  STATEMENT.  342 

and  application  in  due  form,"  was  held  to  be  the  statement 
of  a  mere  conclusion,  and  to  be  insufficient.  The  facts  con- 
tained in  the  affidavit  and  application  should  have  been 
stated,  so  that  the  court  might  see  whether  they  were  in 
"due  form."  1  It  has  been  held  insufficient  to  aver  that 
plaintiff  was  "  duly  appointed  "  administrator.  That  he  was 
appointed,  by  somebody,  or  in  some  form,  is  a  matter  of  fact ; 
hut  whether  he  was  "  duly  appointed,"  is  a  question  of  law.^ 
But  it  would  seem  that  such  averment  embodies  so  much  of 
fact  as  to  be  good  on  demurrer,  though  amenable  to  motion 
to  make  definite.  Where  the  complaint  alleged,  as  the  basis 
of  the  amount  of  rent  sued  for,  an  appraisement  "  duly  and 
legally  made,"  and  the  answer,  instead  of  stating  in  what 
respect  the  appraisement  was  illegal,  simply  alleged  that  it 
•'  was  not  legally  and  duly  made,"  it  was  held  that  while 
each  pleading  might  have  been  subjected  to  a  motion  to 
make  definite,  there  was  so  much  of  fact  embodied  in  the 
allegation  in  the  complaint,  and  such  traverse  thereof  in  the 
answer,  as  to  make  a  material,  though  indefinite,  issue ;  and 
no  objection  being  urged  until  after  verdict  and  judgment 
against  the  plaintiff,  it  was  held  that  the  right  to  object  was 
waived.3  A  denial  "  that  the  plaintiff  is  a  corporation  duly 
organized,"  has  been  held  not  to  raise  an  issue  of  fact.* 

346.  Conclusions  of  Law,  Continued. — The  line  of  de- 
markation  between  what  are  ultimate  facts  and  what  are  con- 
clusions of  law  is  one  not  easy  to  be  drawn  in  all  cases.  Ul- 
timate facts  are  deduced  from  probative  facts  by  a  process  of 
natural  reasoning,  while  conclusions  of  law  are  drawn  by  a 
process  of  legal  deduction.  The  result  reached  by  a  pre- 
sumption of  law  may  be  a  fact,  equally  with  that  reached  by 
a  deduction  of  fact  from  other  and  evidentiary  facts ;  and 
the  same  fact  may  be  reached  by  the  one  process  or  by  the 
other.  The  difference  is  in  the  process,  rather  than  in  the 
result.     Fraud,  guilt,  negligence,  sanity,  are  all  facts,  but 

1  McEntee  v.  Cook,  76  Cal.  187.  *  Oreg.  Cent.  Ry.  Co.  v.  Scoggin, 

2  Beach  v.  King,  17  Wend.  197.        3  Oreg.  161. 
8  Trustees,  etc.,  v.  Odlin,  8  O.  S. 

293. 


343  MATTERS  OF  SUBSTANCE.  §  348 

their  existence  in  a  given  case  may  be  deduced  by  a  process 
of  natural  reasoning  from  other  and  cognate  facts,  or  it  may 
be  inferred  from  certain  facts,  by  fixed  and  arbitrary  rules  of 
law.  We  take  certain  facts  as  evidence,  and  find  the  ultimate 
fact  proved ;  the  law  takes  certain  facts  as  a  basis,  and  arbi- 
trarily draws  a  conclusion  therefrom.^ 

An  allegation  of  a  legal  conclusion  may  contain  an  aver- 
ment of  fact  that  will  make  it  good  on  demurrer;  and  it  has 
generally  been  on  this  ground,  and  to  avoid  prolixity,  that 
courts  have  sustained  the  allegation  that  an  act  was  "  duly" 
done.2 

Whether  a  given  statement  is  a  fact,  or  a  conclusion  of  law, 
may  depend  upon  the  use  that  is  made  of  it,  as  shown  by  the 
context ;  for  a  proposition  may,  for  one  purpose,  be  a  conclu- 
sion of  fact,  and  good  on  demurrer,  while  for  another  pur- 
pose it  is  a  conclusion  of  law,  and  not  good  on  demurrer. 
For  example,  in  an  action  for  goods  sold,  an  allegation  of  in- 
debtedness is  a  conclusion  of  law ;  but  in  an  action  by  a  judg- 
ment creditor,  to  set  aside  a  fraudulent  conveyance,  an  alle- 
gation of  indebtedness  as  the  foundation  of  the  judgment  is 
matter  of  fact.  That  one  is  heir  of  another,  if  asserted  as 
the  ground  of  a  demand,  is  a  conclusion  of  law ;  aliter,  if 
stated  merely  by  way  of  designation.  So,  also,  an  allega- 
tion that  A.  is  a  creditor  of  B.,  if  to  designate  him  as  belong- 
ing to  a  class,  or  as  a  reason  for  making  him  a  party,  is  the 
statement  of  a  fact ;  but  if  used  as  the  assertion  of  a  demand 
by  A.  against  B.,  it  becomes  a  conclusion  of  law.^  An  ulti- 
mate conclusion  of  fact — such  as,  that  the  defendant  was  neg- 
ligent, or  that  he  defrauded  plaintiff — should  not  be  alleged 
These  are  conclusions  to  be  found,  not  to  be  alleged.* 

The  rule  under  consideration  not  only  requires  facts  to  be 

1  1  Gr.  Ev.  14-48  ;  Burr,  on  Cir.  Ready  v.  Sommer,  37  "Wis.  265. 
Ev.  52  ;  Per  Searls,  J.,  in  Levins  Contra,  Rhoda  v.  Alameda  Co.,  52 
V.  Rovegno,  71  Cal.  273.  Cal.  250. 

2  Hoag  V.  Mendenhall,  19  Minn.  »  Turner  v.  White,  73  Cal.  299. 
335 ;  Fowler  v.  N.  Y.  Indem.  Ins.  Cf.  Levins  v.  Rovegno,  71  Cal.  273. 
Co.,  23  Barb.  143  ;  People  v.  *  Abb.  PI.  Br.  262,  and  cases 
Walker,   23  Barb.    304  ;   Trustees,  cited. 

etc.,  V.    Odlin,   8  O.   S.   293.     Cf. 


§  347        GENERAL  RULES  OF  STATEMENT.        344 

stated,  to  the  exclusion  of  the  law  and  legal  conclusions,  but 
it  gives  to  them  controlling  effect ;  so  that  where  a  pleader 
states  the  operative  facts  which  show  his  remedial  right,  he 
is  not  to  be  prejudiced  by  having  erroneously  denominated 
his  title.^  And  a  conclusion  of  fact  is  overcome  by  a  state- 
ment of  specific  facts  showing  the  conclusion  to  be  a  non  se- 
quitur.  Thus,  an  allegation  that  one  was  agent  for  another 
is  a  sufficient  allegation  of  agency,  but  if  coupled  with  the 
constituent  facts  showing  that  the  relation  of  principal  and 
agent  did  not  exist,  no  agency  is  alleged.^  This  is  pursuant 
to  the  rule  that  in  the  construction  of  pleadings  general 
averments  must  yield  to  the  specific  facts  stated.^ 

The  mere  averment  of  a  legal  conclusion  states  no  right 
or  defense,  calls  for  no  responsive  pleading,  is  not  admitted 
by  failure  to  deny,*  or  by  pleading  in  avoidance,^  and  will 
not  admit  evidence  or  sustain  a  judgment.  A  party  is  not 
concluded  by  a  mistaken  averment  of  the  law  in  his  plead- 
ing ;  for  such  averment,  not  being  called  for,  does  not  tend 
to  mislead  the  opposite  party  .^  Where  only  a  legal  conclu- 
sion is  pleaded,  the  pleading  is  demurrable  ;  but  where  suffi- 
cient facts  are  blended  with  legal  conclusions,  the  remedy  is 
by  motion.  If  the  objectionable  matter  may  be  separated 
from  the  other,  it  may  be  stricken  out ;  otherwise,  the  motion 
should  be  to  make  definite  and  certain. 

347.  Evidential  Facts  Excluded.— That  only  the  opera- 
tive facts  constituting  the  right  of  action  or  the  defense 
shall  be  pleaded,  and  that  evidential  facts  shall  not  be 
alleged,  is  an  elementary  principal  of  pleading  ;  and  its  careful 
observance  is  indispensable  to  that  brevity,  simplicity,  and 
clearness  aimed  at  by  the  new  procedure.  To  take  the  raw 
material  of  a  transaction,  and  separate  the  operative  facts 
from  the  probative  matter,  is  a  process  that  requires  much  care 
and  discrimination.     That  the  defendant  told  some  one  that 

1  Robinson  v.  Fitch,  26  O.  S.  659,  *  Wormouth  v.  Hatch,  33  Cal. 
o64.  121  ;  Cutting  v.   Lincoln,   9  Abb. 

2  Everett  v.  Drew,  129  Mass.  150.  Pr.  N.  S.  436  ;  Pom.  Rem.  578. 

3  State  V.  Wenzel,  77  Ind.  428 ;  «  Alston  v.  Wilson,  44  Iowa,  130. 
Per  Elliott,  C.  J.,  in  State  v.  Cas-  ^  Union  Bank  v.  Bush,  36  N.  Y. 
teel,  110  Ind.  174,  187.  361. 


345  MATTERS  OF  SUBSTANCE.  §347 

he  was  indebted  to  the  plaintiff  in  the  amount  claimed,  is  an 
evidential  fact.  It  could  not  create,  or  tend  to  create,  a 
liability  ;  and  if  alleged,  it  need  not  be  traversed,  for  a  denial 
of  it  would  present  an  immaterial  issue.^  The  act  of  an 
agent  is  the  act  of  his  principal — qui  facit  per  alium,  facit 
fer  se  ;  hence  the  agent's  authorized  act  should  be  alleged  as 
the  act  of  the  principal.  This  is  the  ultimate  issuable  fact, 
the  agency  being  a  subordinate  evidential  fact.  In  alleging 
title,  except  where  the  title  is  derivative,  or  the  matter  is 
controlled  by  statute,  the  facts  showing  deraignment  of  title 
should  not,  as  a  general  rule,  be  stated.^  Ownership  is  the 
ultimate  operative  fact,  and  the  facts  showing  source  of  title 
are  evidential.^  An  allegation  that  certain  persons  were 
partners,  is  a  statement  of  the  ultimate  operative  fact ;  *  the 
terms  of  the  agreement,  showing  the  formation  of  a  partner- 
ship, are  evidential  facts.  In  an  action  to  recover  damages 
for  breach  of  an  agreement  not  to  supply  milk  on  a  certain 
route  for  three  years,  a  writing  setting  forth  the  agreement, 
and  fixing  a  penalty  of  one  thousand  dollars  for  breach  there- 
of, was  offered  in  evidence,  and  was  objected  to  on  the  ground 
that  the  action  should  have  been  brought  thereon.  The 
court  overruled  the  objection,  on  the  ground  that  the  writing 
was  only  evidence  ;  and  that  it  was  sufficient  for  the  plaint- 
iff to  allege  the  contract  and  the  breach,  without  the  evi- 
dence.^ 

An  answer  stating  evidential  facts,  all  of  which  could  be 
given  in  evidence  under  a  denial,  and  which,  if  true,  would 
sustain  a  denial,  has  generally  been  treated  as  equivalent  to 
a  denial,  and  held  good  on  demurrer.^     Such  answer,  though 

1  "Wormouth  v.   Hatch,   33  Cal.  Nev.   178,      But    see    criticism  of 
121.  this  case,  Pom.  Rem.  530,  note. 

2  Siter  V.  Jewett,  33  Cal.  93.     Cf.  ^  Tuttle  v.  Hamiegan,  54  N.  Y. 
Gould  PI.  iii.  22-24  ;  Abb.  PI.  Br.  686. 

356,  357.  6  Judah  v.   University    of    Vin- 

8  Ante,  323  et  seq.  cennes,  23  Ind.  272,   277  ;  Clink  v. 

<  Alpers  V.  Schamel,  75  Cal.  590 ;  Thurston,  47  Cal.  21,  29  ;  Van  Als- 

Per    Seney,    J.,    in  Deatrick    v.  tyne  v.  Norton,  1  Hun,  537.     Cf. 

Defiance,  1  Ohio  C.   C.   Rep.  340.  Waggoner  v.  Liston,  37  Ind.  357  ; 

Contra,     Groves    v.    Tallman,    8  Hostetter  v.   Auman,  119  Ind.  7 ; 

Hopkinson  v.  Shelton,  37  Ala.  306. 


§  348  GENERAL  RULES  OF  STATEMENT.  345 

in  the  form  of  new  matter  in  avoidence,  is  not  such  in  sub- 
stance, and  therefore  does  not  require  a  reply. ^  Being  sus- 
tained on  the  ground  that  its  averments  amount  to  a  denial, 
it  is  obvious  that  no  reply  thereto  is  needed.^ 

348.  Some  Operative  Facts  not  to  be  Alleged. — The 
general  rule  is,  that  every  operative  fact  ret^^uisite  in  law  to 
the  maintenance  of  an  action  or  a  defense  must  be  alleged. 
But  to  this  rule  there  are  some  exceptions.  That  which  the 
law  implies  need  not  be  alleged.  In  an  action  for  slander, 
the  plaintiff  need  not  allege  his  good  reputation  ;  ^  and  in  an 
action  for  divorce,  the  good  conduct  of  plaintiff  need  not  be 
averred.*  These  investitive  facts  are  presumed  to  exist.  So, 
facts  necessarily  implied  from  other  facts  already  stated  need 
not  be  substantively  alleged ;  as,  where  one  pleads  the  con- 
version of  one  hundred  dollars  current  coin  of  the  United 
States,  he  need  not  otherwise  aver  its  value. ^  And  that 
which  already  appears  in  the  pleading  of  the  adversary  party 
need  not  be  again  averred.^ 

A  party  must  not  anticipate  and  avoid  a  defense.  In  the 
charging  part  of  a  bill  in  equity,  which  supplied  the  office  of 
a  reply,'^  the  plaintiff  was  allowed  to  do  this.  But  at  com- 
mon law  it  was  never  allowable  to  allege  that  which  would 
more  properly  come  from  the  other  side  ;  ^  and  the  same  rule 

'  Corry  v.  Campbell,  25  O.  S.  134  ;  matter  ;  it  makes  needless  disclo- 

Simmons  v.  Green,  35  O.  S.   104  ;  sure  to  the  adversary  ;  it  limits  the 

Netcott  V.    Porter,    19  Kan.    131  ;  scope  of  the  defendant's  proof  ;  and 

Riddle  v.  Parke,  13  Ind.  89  ;  Ferris  it  refers  the    effect  of  evidential 

V.  Johnson,  27  Ind.  247  ;  State  v.  facts  to  the  court  in  the  first  in- 

Williams,   48  Mo.  210  ;   Sylvis    v.  stance,  instead  of  to  the  jury. 

Sylvis,  11  Colo.  319.  3  Pom.  Rem.  525  ;  Steph.  PI.  367 ; 

2  But  ought  such  pleading  to  be  Ante,  183.     Cf.   Hart  v.  Evans,  8 

sustained?     It  is  an  averment  of  Pa.  St.  21. 

evidential  facts  ;  it  is  argumenta-  *  Roe  v.  Roe,  14  Hun,  612. 

tive  ;  and  it  violates  the  well  es-  ^  Gould  PI.  iii.  4-6  ;    Steph.    PI. 

stabUshed  rule,  that  when  a  plea  366  ;  Abb.  PI.  Br.  50,  51. 

amounts  to  the  general  issue,  or  a  ®  Gould  PI.  iii.  3. 

general    denial,   it    should    be    so  ''  Ante,  149. 

pleaded.     It  presents  the  anomaly  *  Steph.  PI.  364 ;   Gould  PI.    iii. 

of  a  defense  that  is  in  form  a  con-  56.     Hale,  C.  J.,  said  that  to  an- 

fession   and    avoidance,   while    in  ticipate  a  defense  is  "  like  leaping 

effect  it  is  a  traverse  ;  it  encumbers  before  one    comes  to    the    stile." 

the  record  with  a  mass  of  needless  Bovy's  Case,  1  Vent  217. 


347  MATTERS  OF  SUBSTANCE.  §  348 

of  exclusion  obtains  under  the  new  procedure.^  In  an  action 
on  contract,  the  phiintiff  should  not  allege  thatthe  defendant 
was  of  full  age ;  non-age,  like  coverture,  insanity,  fraud,  or 
duress,  is  matter  of  defense.^  In  pleading  a  devise  of  lands, 
it  is  not  necessary  to  allege  that  the  devisor  was  of  full  age.^ 
A  plaintiff  need  not  allege  the  performance  of  conditions 
subsequent.*  In  an  action  on  a  policy  of  insurance,  the  com- 
plaint need  not  allege  that  the  defendant  refuses  to  rebuild ; 
such  option  being  a  condition  subsequent,  for  the  benefit  of 
the  defendant,  and  matter  of  defense.^  So,  also,  a  condition 
of  defeasance  in  a  contract  need  not  be  negatived  by  the 
plaintiff.^  In  an  action  by  a  foreign  guardian,  the  statutory 
prerequisite  that  no  domestic  guardian  has  been  appointed, 
need  not  be  alleged.'^  So,  it  has  been  held  that  in  an  action 
for  divorce,  the  statutory  requirement  that  the  plaintiff  must 
be  a  resident  of  the  county  need  not  be  averred.^  In  actions 
for  negligence,  contributory  negligence  need  not,  with  a 
single  exception,  be  negatived  by  the  plaintiff.^ 

349.  Some  Operative  Facts  not  to  be  Alleged,  Con- 
tinued.— In  actions  for  the  breach  of  contract,  an  averment 
of  non-performance  is  not  the  avoidance  of  a  defense,  but 
the  allegation  of  a  breach,  without  which  the  delict  of  the 
defendant  would  not  appear ;  ^^  and  this  applies  to  an  allega- 
tion of  non-payment,  notwithstanding  the  defense  of  payment 
is  new  matter  in  avoidance.^^     In  an  action  for  an  unpaid 


1  Pom.  Rem,  532,  note  3  ;  Claflin  «  Del.,  etc.,  Ry.  Co.  v.  Bowns,  36 
V.  Taussig,  7  Hun,  223  ;  Metrop.  L.  N.  Y.  Superior  Ct.  126  ;  Bringham 
Ins.  Co.  V.  Meeker,  85  N.  Y.  614 ;  v.  Leighty,  61  Ind.  524. 
Wilkinson  v.  Applegate,  64  Ind.  98  ;  ^  Vincent    v.    Starks,    45    Wis. 
Canfield  v.  Tobias,     21   Cal.    349 ;  458. 

Sands  v.  St.  John,  36  Barb.  628.  »  Young    v.    Young,    18   Minn. 

2  Tyler's  Steph.  PI.  237;    Gould  90. 

PI.  iii.  56  ;  Bliss  PI.  200.  9  Post,  502. 

3  Steph.     PI.     365  ;    StoweU     v.  lo  Gould  PI.  iii.  56. 

Zouch,  1  Plow,  376.  Wheeler,  etc.,  Co.  v.  Worrall, 

*  Hammer  V,  Kaufman,  2  Bond,  80    Ind,    297;    JoUey  v.   Plant,   1 

1.  McArthur,  93  ;    Roberts  v.  Tread- 

6  Union  Ins.  Co.    v.  McGookey,  well  50  Cal.  520.     Cf.  Wilkins  v. 

33  O.  S.  555  ;  Howard  F.  &  M.  Ins.  Moore,  20  Kan.  538. 

Co.  V.  Comick,  24  111.  455. 


§  349  GENERAL  RULES  OF  STATEMENT,  343 

balance,  a  statement  of  payments  credited  is  not  the  antici- 
pation of  a  defense,  but  a  material  element  of  the  plaintiffs 
claim.i 

Some  defenses,  such  as  estoppel  and  tender,  because  they 
are  regarded  unfavorably,  are  required,  it  is  said,  to  be 
pleaded  with  such  particularity  as  to  meet  and  remove,  by 
anticipation,  every  possible  answer  of  the  adversary .2 

The  rule  that  material  facts  alleged  and  not  denied  are  to 
be  taken  as  admitted  does  not  apply  to  facts  alleged  in  vio- 
lation of  the  rule  forbidding  the  anticipation  of  a  defense, 
for  the  plain  reason  that  such  facts,  so  alleged,  are  not  ma- 
terial.^ But  some  courts  have  held,  that  facts  alleged  in  an- 
ticipation and  avoidance  of  a  defense  are  admitted  if  not 
traversed.*  These  holdings,  based  upon  the  theory  that  such 
practice  will  expedite  procedure  and  avoid  delay  where 
there  is  no  actual  defense,  are  not  only  unsound  in  prin- 
ciple ;  they  are  false  in  theory,  and  vicious  in  tendency. 
To  encourage  anticipatory  avoidance  of  defenses  is  to  invite 
speculation,  and  to  encumber  the  records  with  the  avoidance 
of  imaginary  defenses. 

Where  facts  are  stated  that  ought  not  to  be  pleaded,  the 
remedy  is  by  motion  to  strike  out ;  or  they  may  be  treated 
as  surplusage,  and  simply  disregarded. 

1  Quinn  v.  Lloyd,  41  N.  Y.  349.  *  Bracket  v.  "Wilkinson,  13  How. 
Cf.  McElwee  v.  Hutchinson,  10  S.  Pr.  103 ;  People  ex  rel.  Cornell  v. 
C.  436.  Knox.  38  Hun,  236,  240 ;   ?-^  Abb. 

2  Steph.  PI.  366  ;  Bliss  PL  364.         N.  C.  120,  note. 
8  Canfield  v.  Tobias,  21  Cal.  349 ; 

Doyle  V.  Franklin,  48  Cal.  537. 


CHAPTER    XXIII. 
RULES  RELATING  TO  MATTERS  OF  FORM. 

350.  Matter  of  Form. — The  law  of  pleading  not  only 
requires  the  statement  of  all  substantive  facts  essential  to 
the  maintenance  of  the  action  or  the  defense,  and  excludes 
all  other  substantive  matter,  but,  to  facilitate  the  develop- 
ment of  an  issue,  and  to  insure  materiality,  certainty,  brevit}^ 
and  truth  in  allegations,  it  imposes  certain  formal  require- 
ments. In  the  Reformed  Procedure,  rules  relating  to  matters 
of  form  are  subservient  to  those  relating  to  matters  of  substance, 
and  are  designed  to  promote  regularity  and  dispatch,  to 
avoid  irrelevant  inquiries,  and  to  insure  certainty  and  con- 
clusiveness in  the  results.  These  subsidiary  rules  relate, 
mainl}'-,  to  the  construction  of  pleadings,  and  to  the  manner 
of  the  statement. 

I.  THE  CONSTRUCTION    OF  PLEADINGS. 

351.  Pleadings    to    be  Liberally  Construed. — It  is  a 

rule  of  the  common  law,  that  when  a  pleading  is  ambig- 
uous or  doubtful  in  meaning,  so  that  two  different  mean- 
ings present  themselves,  that  construction  least  favorable  to 
the  party  so  pleading  shall  be  adopted.^  Under  this  rule, 
— based  upon  the  theory  that  the  pleader  states  his  case 
as  favorably  for  his  own  side  as  the  facts  will  warrant, — the 
courts  came  to  construe  every  pleading  most  strongly 
against  the  pleader,  and  no  presumption  could  be  indulged 
in  favor  of  any  pleading.  The  application  of  this  rule 
was  somewhat  modified,  however,  by  the  doctrine  that, 
except  as  to  pleas  of  estoppel  and  dilatory  pleas,  a  plead- 
ing could  not  be  regarded  as  ambiguous  or  obscure,  if  it  be 
certain  to  a  common  intent ;  that  is,  "  if  it  be  clear  enough 

1  Steph.  PL  382,  and  note  2. 

349 


§352 


GENERAL  RULES  OF  STATEMENT. 


350 


according  to  rea.soniible  intendment  or  construction,  though 
not  worded  witli  absolute  precision."  ^ 

The  general  rule  under  the  new  procedure  is,  that  the 
allegations  of  a  pleading  are  to  be  liberally  construed, 
with  a  view  to  substantial  justice  between  the  parties. 
Facts  are  to  be  stated  in  "ordinary  and  concise  language,"  ^  and 
this  language  is  to  be  taken  according  to  its  popular  and  ordi- 
nary meaning,  and  each  averment  is  to  be  taken  in  its  relations 
with  other  averments,  and  the  meaning  of  each  part  is  to  be 
determined  with  reference  to  the  entire  pleading  and  its  general 
theory  ;  words  and  allegations  are  to  be  interpreted  as  in  other 
writings — modified  by  their  context,  by  their  collocation,  and 
by  the  general  tenor  of  the  entire  pleading  ;  ^  and  general  state- 
ments are  to  be  controlled  by  the  specific  facts  stated.^ 

352.  Pleadings  to  be  Liberally  Construed,  Con- 
tinued.— Under  favor  of  this  rule,  whatever  is  necessarily 
implied  in,  or  is  reasonably  to  be  inferred  from,  an  allegation, 
is  to  be  taken  as  if  directly  averred.^     This  rule  of  construc- 


^  Steph.  PI.  384,  and  note  2. 

^  The  requirement  that  facts  shall 
be  stated  "  in  ordinary  and  concise 
language  "  has  sometimes  been  re- 
garded as  a  relaxation  in  the  mat- 
ter of  clearness  and  perspicuity,  and 
as  adapting  the  art  of  pleading  to 
the  unskilled  and  illiterate.  There 
could  hardly  be  a  greater  mistake. 
The  requirement  is  a  step  in  the  op- 
position direction.  ' '  Ordinary  and 
concise  language "  is  peculiarly 
free  from  uncertainty,  in  state- 
ments about  the  ordinary  affairs  of 
life.  The  earlier  English  judges 
adhered  with  great  strictness  to 
exact  expressions  and  literal  mean- 
ings. This  induced  lawyers  to 
multiply  words  and  phrases,  in  a 
vain  attempt  to  make  their  mean- 
ing clear  and  certain,  and  led  to  a 
fullness  of  phraseology,  and  a  pro- 
fusion of  specification,  that  often 
tended  to  obscure  the  meaning. 
The  fact  is,  that  when  we  attempt, 


by  multiplying  words  and  speci- 
fications, to  free  our  statements 
from  possible  misapprehension,  we 
oftener  render  them  liable  to  a 
wrong  interpretation.  A  distin- 
guished writer  on  Legal  Hermeneu- 
tics  has  said  :  ' '  We  do  not  arrive 
at  great  perspicuity  [of  statement] 
by  going  beyond  a  certain  limit. 
.  .  .  The  more  we  strive,  in  a 
document,  to  go  beyond  plain  clear- 
ness and  perspicuity,  the  more  we 
increase  the  chances  of  sinister  in- 
terpretation."    Lieb.  Herm.  22: 

3  Pom.  Rem.  546  ;  Swan  PL 
13L 

*  State  V.  Wenzel,  77  Ind.  428 ; 
Eluott,  C.  J.,  in  State  v.  Casteel, 
110  Ind.  174,  187. 

^  Wagoner  v.  Wilson,  108  Ind. 
210;  Milliken  v.  W.  U.  Tel.  Co., 
110  N.  Y.  403  ;  Marie  v.  Garrison, 
83  N.  Y.  14  ;  Sac  County  v.  Hobbs, 
72  Iowa.  69. 


351  MATTERS  OF  FORM.  §352 

tion,  while  it  abrogates  the  common-law  rule  that  a  pleading^ 
is  to  be  construed  most  strongly  against  the  pleader,  does 
not  require  a  leaning  in  his  favor.  Words  are  not  to  be 
forced  out  of  their  natural  meaning ;  they  are  to  receive  a 
fair  and  reasonable  interpretation,  with  a  view  to  the  pur- 
poses of  him  who  used  them.^  The  allegations  are  to  be 
considered  as  referring  to  the  conditions  existing  at  the  time 
of  the  commencement  of  the  action,  the  same  as  if  filed  at 
that  time,  unless  otherwise  stated.^  A  pleader  may  not, 
under  favor  of  this  rule,  throw  upon  his  adversary  the  hazard 
of  correctly  interpreting  allegations  of  doubtful  and  uncer- 
tain meaning.^  Nor  does  this  rule  exclude  the  use  of  tech- 
nical terms  peculiar  to  a  trade  or  profession ;  and  when 
such  terms  are  employed,  they  are  to  have  their  technical 
meaning,  unless  the  context  shows  they  were  used  in  some 
other  sense.* 

In  the  application  of  this  canon  of  construction,  it  must 
be  borne  in  mind  that  it  relates  to  matter  of  form,  and  in  no 
way  dispenses  with  the  fundamental  requisites  of  a  pleading  ;  ^ 
and  that  it  is  designed  to  save  the  riglits  of  parties,  and  to 
promote  substantial  justice,  and  not  to  encourage  laxity  of 
statement  on  the  one  hand,  or  careless  oversight  on  the  other 
hand.  If  language  is  ambiguous,  or  the  meaning  obscure,  it 
should  be  amended  on  motion  to  make  definite ;  for  this 
rule  of  construction  will  be  indulged  with  greater  latitude 
on  the  trial,^  or  after  judgment,''  than  before  issue. 

In  the  construction  of  a  pleading,  surplusage  is  to  be  dis- 
regarded.    Superfluous  matter  may  be  stricken  out  on  mor 

^  Story,  J.,  in  Lawrence  v.  Mc-  370;    Isaacs  v.  Holland,  4  Washi. 

Calmont,  2  How.  444,  449  ;  Ryan  v.  54  ;    State  v.  Casteel,  110  Ind.  174^ 

Jacques,  103  Cal.  280  ;  Crist  v.  Bur-  187. 

lingame,   62   Barb.   351,  355.      Cf.  *  Robinson  v.  Greenville,  42  O.  S. 

Callahan  v.  Loughran,  102  Cal.  476  ;  625. 

Ry.  Co.  V.  McDaniel,  134  Ind.  166.  «  Clark  v.  Dillon,  97  N.  Y.  370 ; 

2  McCormick  v.  Blossom,  40  Iowa,  Spear  v.  Downing,  12  Abb.  Pr.  437 ; 

256  ;  Townshend  v.  Norris,  7  Hun,  s.  c.  34  Barb.  522. 

239  ;  Brown  v.  The  Galena  M.  &  S.  e  Hazelton    v.   Union    Bank,   32 

Co.,  32  Kan.  528.  Wis.  34,  43. 

3Ridder  v.   Whitlock,  12  How.  '  Shahan  v.   Tallman,  39    Kaiu 

Pr.  212  ;   Clark  v.  Dillon,  97  N.  Y.  185, 187. 


§  353  GENERAL  RULES  OF  STATEMENT.  353 

tion,  but  its  presence  does  not  vitiate  that  which  is  in  itself 
valid  and  material.  Utile  per  inutile  non  vitiatur.  But  an 
unnecessary  detail  of  circumstances  may  be  so  connected 
with  material  matter  as  to  be  inseparable  from  it ;  in  which 
case  the  wliole  may  be  traversed,  and  must  then  be  proved 
as  alleged.  And  where  the  language  of  a  pleading  will 
fairly  admit  of  a  construction  that  will  sustain  it  as  against 
a  demurrer,  it  should,  in  the  absence  of  a  motion  to  make 
definite,  be  so  construed.^ 

353.  Liberal  Construction — Illustrative  Cases. — Where 
the  complaint  on  a  promissory  note  alleged  that  the  de- 
fendant was  liable  both  as  indorser  and  as  guarantor,  but  did 
not  allege  a  consideration  to  support  the  guaranty,  or  demand 
and  notice  to  fix  the  liability  as  indorser,  it  was  held,  on  de- 
murrer, that  inasmuch  as  indorsement  imports  a  consideration, 
such  implied  consideration,  would,  under  the  liberal  con- 
struction authorized  by  the  code,  and  in  the  absence  of  a 
motion  to  make  definite,  sustain  the  contract  of  guaranty.^ 
The  allegation  that  defendant  refused  to  cut  plaintiff's 
wheat,  "  as  defendant  had  agreed  and  contracted,"  was  held 
to  be  a  sufficient  averment  of  a  contract  ;  the  word  "  as  " 
being  used  as  the  equivalent  of  "  which."  ^  But  in  an  action 
on  a  contract  that  could  be  awarded  only  to  the  lowest  bid- 
der, an  allegation  that  it  was  awarded  to  plaintiff  "  as  "  the 
lowest  bidder  is  not  enough,  for  it  might  be  evasive.  The 
allegation  might  be  literally  true,  and  yet  the  plaintiff  not 
in  point  of  fact  be  the  lowest  bidder.*  Such  allegation  re- 
lates to  the  defendant,  and  states  how  it  regarded  the  bid  ; 
whereas  it  should  relate  to  the  bid,  and  affirm  that  it  was  the 
lowest.  In  an  action  by  the  assignee  of  a  bankrupt  cor- 
poration to  charge  shareholders,  an  allegation  that  three 
classes  of  shares  had  been  fraudulently  issued,  but  not  stat- 


1  Ry.  Co.  V.  Iron   Co.,  46  O.   S.  expressed  consideration,  and  trans- 
44.  ports  it  from  one  contract  to  an- 

2  Clay  V.  Edgerton,  19  O.  S.  549.  other  for  that  purpose. 

This  case  is  of  doubtful  authority.  *  Kelly  v.  Peterson,  9  Neb.  77. 

It  makes  the  mere  implication  of  a  *  Nash  v.  City  of  St.  Paul,  8  Minn, 

consideration  do  the  office  of  an  143,  159. 


353  MATTERS  OF  FORM.  §  354 

ing  of  wliich  defendant's  were,  it  was  held  that  it  must  be 
assumed  that  they  were  of  the  class  least  open  to  objection.^ 
An  allegation  can  not  be  stronger  than  its  weakest  aspect. 

A  complaint  setting  out  a  copy  of  the  defendant's  contiact 
«ued  on,  reciting  that  "  for  value  received  "  he  "  promised 
to  pay,"  etc.,  but  not  otlierwise  alleging  a  consideration,  and 
stating  that  "  the  contract  is  the  property  of  plaintiff  by  pur- 
chase," but  not  stating  from  whom  purchased,  was  sustained 
on  deraurrer.2  And  an  allegation  that  a  thing  in  action  was 
assigned,  implies,  on  demurrer,  that  the  assignment  was  so 
made  as  to  be  valid,^ 

354.  The  General  Theory  of  a  Pleading. — A  pleading 
should  be  construed  with  reference  to  the  general  theory 
upon  which  it  proceeds  ;  and  a  pleading  should  not  be  un- 
certain as  to  which  of  two  or  more  theories  is  relied  upon. 

It  is  a  general  rule  of  construction,  that  the  character  and 
effect  of  a  pleading  are  to  be  determined  by  reference  to  the 
5ubstar.ce  of  its  averments,  and  not  by  reference  to  its  form, 
or  to  the  name  or  designation  given  it  by  the  pleader.*  But 
this  rule  is  resorted  to,  only  when  the  ends  of  justice  require 
it,  and  when  it  will  not  give  the  pleader  an  unjust  advantage, 
or  embarrass  his  adversary  ;  ^  and  it  can  never  obtain  when 
it  does  violence  to  the  general  theory  upon  which  the  plead- 
ing is  constructed.  "  It  is  a  well-settled  rule  of  pleading, 
that  a  paragraph  of  complaint  or  answer,  if  good  at  all, 
must  be  good  on  the  theory  upon  which  it  is  pleaded."  ^ 


1  Foreman  v.  Bigelow,  7  Cent.  L.  14  O.  S.  31  ;  Springer  v.  Dwyer,  50 
J.  430.  N.  Y.  19  ;  Burnside  v.  Grand  Tnink 

2  Prindle  v.  Caruthers,  15  N,  Y.  Ry.  Co.,  47  N.  H.  554  ;  McClanahan 
425.     For  further  applications  of  v.  Williams,  136  Ind.  30. 

the  rule  requiring  liberal  construe-  ^  McAbee  v.  Randall,  41  Cal.  136  ; 

tion,   see  Robson   v,    Comstock,  8  Baker  v.  Ludlam,  118  Ind.  87. 

Wis.  372 ;  Saulsbury  v.  Alexander,  ^  pgr  Olds,  J.,  in  Colglazier  v. 

50  Mo.  142  ;  Ball  v.  Fulton,  31  Ark.  Colglazier,  117  Ind.  460  ;    Baker  v. 

379 ;    Kalckhoff    v.   Zoehrlaut,   40  Ludlam,    118  Ind.    87  ;    Boone  PL 

Wis.  427.  272  ;  Balue  v.  Taylor,  136  Ind.  368  ; 

3  Gunderson  v.  Thomas,  8  Wis.  Ry.  Co.  v.  Barnes,  137    Ind.    307 ; 
400.  Powder  Co.  v.  HUdebrand,  137  Ind. 

*Klonne  v.  Bradstreet,  7  O.  S.  462. 
322;  Wiswell  v.  Cong.  Cli.  of  Cin., 
23 


J^  355  GENERAL  RULES  OF  STATEMENT.  354 

Where  the  defendant  calls  his  answer  a  "  counter-claim,'' 
and  the  case  is  tried  on  that  theory,  he  will  not  be  permitted, 
in  a  reviewing  court,  to  call  it,  for  the  first  time,  a  "  cross- 
complaint,"  in  order  to  obtain  a  review  of  an  order  denying 
liis  motion  for  judgment  on  the  pleadings.^  A  complaint 
framed  on  the  theory  that  it  is  a  bill  to  review  a  judgment, 
and  found  to  be  insufficient  as  such,  can  not  be  sustained  as 
an  application  to  be  relieved  from  the  judgment  on  the 
ground  of  mistake  or  inadvertence.  It  must  stand  or  fall,  on 
the  theory  originally  adopted.^  A  denial  incorporated  with 
a  plea  of  the  statute  of  limitations,  and  intended  simply  to 
make  way  for  the  defense  of  the  statute,  can  not  itself  be 
relied  upon  as  a  defense  of  denial.  Such  defense  must  be  up- 
held, if  at  all,  on  the  theory  upon  which  it  was  pleaded  ;  and 
that  is,  as  a  defense  of  new  matter.^  So,  in  general,  a  plead- 
ing must  be  sustained,  if  at  all,  for  the  purpose  for  which  it 
was  originally  intended,  and  upon  the  theoryon  which  it  was 
drafted,  and  not  on  some  other  theorj^  ;  for  to  hold  other- 
wise, would  enable  a  party  to  make  an  elastic  pleading, 
changeable  to  meet  the  exigencies  of  his  case* 

If  a  pleading  makes  it  uncertain  as  to  which  of  two  theories 
the  pleader  relies  upon,  the  fault  should  be  corrected  by 
motion  ;  it  is  not  ground  for  the  exclusion  of  evidence.^ 

II.    THE   MANNER     OF    STATEMENT. 

355.  Scope  of  this    Subdivision. — In  setting  forth  the 

1  McAbee  v.  Randall,  41  Cal.  136.  meaning  and  effect  of  the  plead- 

2  Baker  v.  Ludlam,  118  Ind.  87.  ings,   and  he  may  introduce  evi- 

3  Colglazier  V.  Colglazier,  117Ind.  dence  that  is  relevant  upon  any 
460.  rational    view    of    the    pleadings, 

*  W.  U.  Tel.  Co.  V.  Reed,  96  Ind.  though  it  be  irrelevant  upon  the 

195,    199  ;    Johnston  v.    Greist,  85  theory  of  the  pleadings  maintained 

Ind.  503  ;  W.  U.  Tel.  Co.  v.  Young,  by  the  other   side.     Thompson  v. 

93  Ind.  118 ;    Mescall  v.  TuUy,  91  Franks,  37  Pa.  St.  337 ;  Mariner  v. 

Ind.   96.      This    adherence  to  the  Smith,  7  Baxter,  423.     And  where 

theory  of  a  pleading  is  the  same  in  evidence,  competent  on  one  theory, 

principle  as  the  rule  against  de-  but  incompetent  on  another,  is  in- 

parture  in  pleading.  troduced,  it  is  the  duty  of  the  court 

^  Springer  v.  Dwyer,  50  N.  Y.  19  ;  to  instruct  the  jury  in    reference 

Com.  Bank  v.  Pfeiffer,  108  N.  Y.  to  the  consideration  and  applica- 

242,  246.     Each  party  has  the  right  tion  thereof.      Mariner  v.    Smith, 

to  adopt  liis  own  theory  as  to  the  supra. 


355  MATTERS  OF  FORM.  §356 

formal  parts  of  the  complaint,  in  Part  III.,  the  manner  of  the 
statement  of  facts  is  fully  considered  so  far  as  relates  to  that 
particular  pleading.  It  is  there  shown  that  the  statement  of 
facts  constituting  the  cause  of  action  is  to  be  "  in  ordinary 
and  concise  language,"  that  there  is  no  prescribed  order  in 
which  they  are  to  be  set  forth,  that,  subject  to  certain  rules 
and  restrictions,  several  causes  of  action  may  be  joined  in  one 
complaint,  that  when  so  joined  they  should  be  separately 
stated  and  consecutively  numbered,  that  a  plaintiff  may  state 
two  or  more  distinct  grounds  for  a  single  recovery,  that  in 
some  cases  he  may  make  a  duplicate  statement  of  one  right 
•of  action,  and  that  lie  may  demand  and  have  several  kinds  of 
relief  on  one  cause  of  action.^  It  is  here  proposed  to  con- 
sider those  rules  pertaining  to  the  manner  of  stating  opera- 
tive facts  generally,  and  which  are  applicable  to  the  plead- 
ings in  general. 

356.  Facts  to  be  Stated  Issuably. — The  formal  plead- 
ings in  an  action  are  for  these  three  purposes :  (1)  To  show 
to  the  court  that  there  is,  'prima  facie,  occasion  for  judicial 
interposition ;  (2)  to  disclose  and  formulate  any  resulting 
contention  hiter  partes  ;  and  (3)  to  predefine  the  nature  and 
scope  of  the  trial.  To  promote  the  second  of  these  purposes, 
and  facilitate  the  production  of  an  issue,  all  traversable  facts 
are  required  to  be  stated  issuably  ;  that  is,  in  such  direct  and 
positive  form  that  the  adverse  party  may  traverse  them.^ 
Allegations,  whether  made  upon  personal  knowledge,  or  upon 
information  and  belief,  should  be  direct  and  positive,  in  order 
to  avoid  confused  and  immaterial  issues.  Such  statements 
as,  "  Plaintiff  is  informed  and  believes,  and  so  charges  the  fact 
to  be,"  are  immaterial  and  redundant,  and  should  be  stricken 
out.^  There  is  no  requirement  that  facts  are  to  be  stated 
from  personal  cognizance  alone,  and  there  is  neither  reason 
nor  authority  for  designating  those  stated  on  information 
and  belief.  One  has  as  good  right  to  rely  upon  facts  which 
lie  is  informed  and  believes  are  true,  as  upon  those  personally 
known  to  him ;  and  whether  he  makes  the  allegation  upon 

1  Ante,  193  et  seq.  STruscott  v.   Dole,  7  How.    Pr. 

2  Gould  PI.  iii.  28,  42-50.  331. 


g  357  GENERAL  RULES  OF  STATEMENT.  35^ 

the  one  ground  or  the  other,  is  not  material.  Less  particu- 
larity is  required,  both  at  common  law  and  under  the  codes, 
in  the  statement  of  matter  of  inducement  and  matter  of  aggra- 
vation, than  in  the  statement  of  facts  that  are  of  the  gist  of 
a  cause  of  action  or  a  defense ;  for  as  to  some  matters  of 
inducement,  and  as  to  all  matters  of  aggravation,  no  traverse 
can  be  taken.^  But  as  to  all  material  allegations, — those 
essential  to  the  claim  or  defense, — the  rule  under  consid- 
eration is  applicable. 

357.  Facts  to  he  Stated  Issu ably ^  Continued. — Under 
this  rule,  pleadings  must  not  be  by  way  of  recital,  but  must 
be  direct  and  positive  in  form.  In  a  complaint  for  assault 
and  battery,  the  allegation  should  be,  that  "  the  defendant 
made  an  assault ;  "  not,  that  "  whereas  the  defendant  made  an 
assault."  The  latter  statement  asserts  nothing,  and  a  trav- 
erse of  it  will  not  make  an  issue.^  And  an  alternative,  or  a 
hypothetical  statement,  is  equally  objectionable.  An  allega- 
tion that  the  defendant  wrote  and  published,  or  caused  to  be 
written  and  published,  a  certain  libel,  does  not  positively 
charge  the  doing  of  either;  and  the  statement  that  if  the 
plaintiff  is  the  owner  of  a  certain  note,  it  was  obtained  by 
fraud,  does  not  positively  allege  fraud.^  In  an  action  to  re- 
cover a  balance  due  for  goods  sold  and  delivered,  an  answer 
that  "  if  the  plaintiff  ever  sold  any  goods  to  the  defendant, 
they  were  sold  on  credit,  and  not  to  be  paid  for  in  nine 
years  from  the  day  of  sale,"  is  hypothetical;  it  neither  denies 
the  sale,  nor  alleges  an  unexpired  credit.^  A  hypothetical 
form  of  statement  has  been  allowed,  where  the  party  could 
not  have  certain  knowledge  of  the  facts.  Thus,  an  answer 
that,  if  plaintiff's  lands  were  flooded,  the  statute  of  limita- 
tions had  run,  has  been  sanctioned.^ 

1  Ante,  192.  *  Hamilton  v.  Hough,  13  How. 

asteph.  PI.  390 ;  Bliss  PI.  318.  Pr.  14. 

»Steph.   PI.  890;    The  King  v.  ^Zeidler  v.  Johnson,  38  Wis.  335  ; 

Brereton,  8  Mod.  328 ;   McMurray  Brown  v.  Ryckman ,  12  How.  Pr. 

V.  Gifford,  5  How.  Pr.  14 ;  Zeidler  313.     But  these  cases    violate    an 

V.   Johnson,    38  "Wis.    335  ;    Ladd  important  principle,  and  must  be 

V.     Ramsby,    10    Oreg.    207.    Cf.  of  doubtful  authority.     The  statute 

Dovan    v.    Dinsmore,     33     Barb,  of  limitations  is  a  defense  of  new 

86.  matter,   and  the  plea  must   give 


357  MATTERS  OF  FORM.  §357 

The  statement  of  a  fact  by  mere  inference  violates  this  rule. 
The  statement  that  "  when  the  slanderous  words  were  spoken 
by  defendant,"  does  not  allege  that  defendant  spoke  the 
words.^  That  a  contract  was  awarded  to  the  defendant  "  as  " 
the  lowest  bidder,  does  not  aver  that  he  was  the  lowest  bidder ;  ^ 
and  that  one  became  indebted  for  services  rendered,  does  not 
aver  that  services  were  rendered.^  A  denial  that  is  a  mere 
inference  from  facts  stated, — as,  where  a  defendant  states 
certain  facts,  and  then  adds,  "  and  defendant  therefore  de- 
nies," etc., — is  held  not  to  be  a  good  denial.*  But  a  fact 
stated  inferentially,  and  not  objected  to,  is  good  after  judg- 
ment.^ The  statement  that  "  one  F.,  the  daughter  of  plaint- 
iff, was,"  etc.,  avers  that  F.  was  the  plaintiff's  daughter, 
being  equivalent  to  "  one  F.,  who  is  the  daughter,"  etc.^ 

In  an  action  to  annul  a  former  judgment,  a  denial,  in  the 
complaint,  that  various  steps  were  ever  taken  in  the  former 
action,  is  not  equivalent  to  an  averment  that  the  steps  were 
not  taken. ^ 

Material  facts  pleaded  under  a  videlicet,  for  the  purpose  of 
rendering  a  general  statement  specific,  may  be  traversed,  not- 
withstanding its  indirect  form  of  statement.^ 

In  a  complaint  alleging  that  a  person,  "  being  of  unsound 
mind,  and  incompetent  to  manage  herself  or  her  affairs,  in 
consequence  of  the  influence  exerted  over  her  "  by  another, 
executed  certain  conveyances ;  the  issuable  fact  is  "  the  in- 
fluence exerted  over  her,"  and  not  the  "  being  of  unsound 
mind."  ^  The  ground  of  such  action  is  the  exertion  of 
influence. 

color.  Tho  hypothetical  statement  233.  Sed  qucere :  If  the  facts  stated 
does  not  give  color,  and  hence  viti-  are  evidential,  and  would  support 
ates  the  plea.  The  answer  in  such  the  denial,  it  is  faulty  in  form,  but 
case  should  refer  to  the  plaintiff's  good  in  substance.  See  next  sec- 
claim  as  the  "  alleged,"  or  the  "  sup-  tion. 

posed,"  right  of  action.     Ante,  240,        ^jjill  v.  Haskin,  51  Cal.  175. 
and  cases  cited.  ^  Parker  v.  Monteith,  7  Oreg.  277. 

1  Roberts  v.  Lovell,  38  Wis.  211.  '^  Smith  v.  Nelson,  62  N.  Y.  286. 

2  Nash  V.  St.  Paul,  8  Minn.  143,        8  Gould  PI.  iii.  35^2. 

159.  'Valentine  v.   Lunt,   115  N.  Y. 

«  Holgate  V.  Broome,  8  Minn.  209.    496. 
♦Wright  V.    Schmidt,   47   Iowa, 


g§  358-359         GENERAL  RULES  OF  STATEMENT.  353 

358.  Argumentative  Statements. — Both  facts  and  de- 
nials must  be  .^stated  in  an  absolute  form,  and  not  left  to  be 
gathered  by  inference  and  argument.^  An  allegation  that 
upon  measuretnent  of  a  certain  distance  it  was  found  to  be 
ten  yards,  is  argumentative  as  to  the  distance.  The  fact 
absolutely  alleged  is  the  measurement ;  and  that  may  have 
been  false.^  In  trespass  for  taking  and  carrying  away  the 
plaintiff's  plow,  a  plea  that  the  plaintiff  never  had  a  plow  is 
bad.  As  an  argument,  it  warrants  the  inference  that  the  de- 
fendant is  not  guilty ;  but  a  plea  of  not  guilty  can  be  asserted 
only  by  denial.'^ 

In  an  action  on  an  indemnity  bond,  the  complaint  alleging 
several  breaches,  and  the  payment  of  several  sums  by  the 
plaintiff,  an  answer  averring  repayment  of  all  that  the  plaint- 
iff has  paid  and  expended,  is  argumentative.  Such  answer 
avers,  in  effect,  payment  of  whatever  the  plaintiff  may  be 
able  to  prove  he  had  expended  ;  whereas  it  should  be  ad- 
dressed to  the  sums  claimed  in  the  complaint,  and  should 
confess  and  avoid.*  In  an  action  for  a  balance  due  for  goods 
sold  and  delivered,  an  answer  denying  that  the  plaintiff  "  ever 
sold  to  the  defendant  any  goods  that  had  not  been  paid  for  by 
the  defendant,"  neither  denies  the  sale  and  delivery,  nor 
alleges  payment.^ 

359.  Argumentative  Statements,  Continued. — A  state- 
ment of  facts  simply  giving  a  different  version,  or  setting  up 
what  is  claimed  to  be  the  real  transaction,  since  it  affirms 
facts  inconsistent  with  those  alleged  by  the  other  party,  is  an 
argumentative  denial.  In  an  action  on  an  alleged  promise  to 
do  a  certain  thing,  the  answer  alleged  that  the  terms  of  the 
promise  were  not  those  stated  in  the  complaint,  and  set  out 
the  terms  as  claimed  by  the  defendant.  A  general  demurrer 
to  this  answer  was  overruled,  on  the  ground  that,  although  an 

iSteph.  PI.  386  ;  Gould  PI.  iii.  28-  as,  57  Ind.  316  ;  DeForrest  v.  BuU 

30  ;  Thompson  v.  Hunger,  15  Tex.  ler,  63  Iowa,  78. 
523  ;    Spencer     v.    Southwick,     9        2  steph.  PI.  387. 
Johns,   313  ;   Supply   Ditch   Co.  v.        »  steph.  PI.  387. 
Elliott,  10  Colo.   327  ;  s.  c.  3  Am.        *  Hart  v.  Meeker,  1  Sandf .  623. 
St.  Rep.  586.     Cf.  Morris  v.  Thorn-        ^  Hamilton  v.   Hough,  13  How. 

Pr.  14. 


359  MATTERS  OF  FORM.  §360 

argumentative  denial,  it  contained  facts  constituting  a  de- 
fense.^ Under  a  like  state  of  pleadings,  in  an  action  to  recover 
for  services  rendered,  it  was  held  that  the  plaintiff  might  re- 
cover on  the  contract  set  up  by  the  defendant,  if  sustained  by 
the  evidence.^  Such  recovery  was  upheld,  to  avoid  the  delay 
and  expense  of  another  suit,  and  because  it  did  justice  between 
the  parties,  after  a  full  and  fair  trial,  notwithstanding  the 
irregularity  in  the  pleadings. 

Argumentativeness,  being  a  fault  of  form,  and  not  of  sub- 
stance, is  to  be  corrected  on  motion ;  ^  it  does  not  subject  a 
pleading  to  demurrer,*  unless  the  facts,  however  stated,  are 
insufficient  in  substance  and  effect.^  The  general  rule  is, 
that  where  evidential  facts  are  pleaded,  which  could  be  proved 
under  a  denial,  and  which,  if  proved,  would  support  a  denial, 
they  may, in  the  absence  of  a  motion,  be  treated  as  a  denial;^ 
and  such  pleading,  whether  answer  or  reply,  is  not  subject  to 
demurrer,  because  it  is  not  a  statement  of  new  matter,  but 
merely  a  denial.'^  And  for  the  same  reason,  such  denial  in 
an  answer  does  not  require  a  reply .^ 

360.  Two  Affirmatives  and  Two  Negatives. — An  issue 
of  fact  can  properly  be  made  only  by  an  affirmance  on  one 
side,  and  a  denial  on  the  other.  If  the  plaintiff's  allegation 
be  in  the  affirmative,  a  traverse  thereof,  to  present  a  good 
issue,  must  be  in  the  negative ;  and,  e  converso,  if  the  plaint- 
iff's allegation  be  in  the  negative,  it  should  be  met  by  an 
affirmative.^  An  allegation  that  a  person  is  dead  should  be 
traversed  by  a  denial  that  he  is  dead,  and  not  by  an  affirm- 
ance that  he  is  alive.^^  An  allegation  that  a  person  died 
seized  in  fee,  should  not  be  traversed  by  alleging  that  he  died 

1  Loeb  V.  Weis,  64  Ind.  285.  cham  v.   Zerega,   1  E.  D.  Smith, 

2Cookv.  Smith,  54  Iowa,  636.  553. 

8  Bank  v.  Hendrickson,  40  N.  J.  «  Ante,  268. 

L.  52.  9Steph.    PI.   408;    Fortescue    v. 

<  Davis  V.  Bonar,  15  Iowa,  171.  Holt,  1  Ventris,  213;  S.  C.   Ames' 

5  Arthui-  V.  Brooks,  14  Barb.  533  ;  Cases  on  PI.  134.  Cf.  Kenchin  v. 
Hunter  v.  Powell,  15  How.  Pr.  Knight,  1  Wils.  253  ;  Per  Coltman, 
221.  J.,  in  Muntz  v.  Foster,  6  M.  &  G. 

6  Pom.  Rem.  624,  625  ;  Ante,  268.  745  ;  Frisch  v.  Caler,  21  Cal.  71. 

^  Pom.  Rem.  627  ;  Nelson  Lumber  ^  Gould  PI.  vii.  32  ;  Ames'  Ca.sps 
Co.  V.  Pelan,  34  Minn.  243 ;  Ket-    on  PI.  134. 


§  360  GENERAL  RULES  OF  STATEMENT.  360 

seized  in  tail ;  though  at  common  law  a  denial  might  be  added 
under  the  absque  hoc}  If  tiie  complaint  allege  that  the  de- 
tendant  failed  to  do  a  certain  act,  he  should  traverse  by  an 
affirmative  allegation,  that  he  did  the  act ;  an  allegation 
that  he  did  not  fail  to  do  the  act  would  not  be  a  good 
traverse  .2 

It  is  true,  that  two  affirmative  statements  may  be  repug- 
nant to  each  other,  and  that  the  denial  of  a  negative  proposi- 
tion is  the  affirmance  of  its  opposite ;  but  the  formal  defect 
of  such  combinations  is,  that  the  one  does  not  confess  and 
avoid,  and  the  other  denies  only  by  way  of  inference  or 
argument. 

Where  the  complaint  alleged  that  a  certain  assignment  of 
a  note  and  mortgage  was  without  consideration,  and  for  the 
purpose  of  collection  only,  and  the  answer  alleged  that  it  was 
upon  a  sale,  and  for  a  valuable  consideration,  it  was  held  that 
this  was  an  affirmative  traverse  of  the  negative  averment  of 
the  complaint,  and  was  not  new  matter  requiring  a  reply.* 
The  allegation  of  want  of  probable  cause,  in  actions  for  mali- 
cious prosecution,  and  of  the  absence  of  negligence  in  plaint- 
iff, when  such  averment  is  requisite  ;  and  the  pleas  of  infancy, 
and  of  the  statute  of  limitations,  are  instances  of  negative 
averments  that  should  be  traversed  by  an  affirmative  allega- 
tion. 

The  fault  of  traversing  an  affirmative  by  an  affirmative,  or 
a  negative  by  a  negative,  is  matter  of  form,  and  not  of  sub- 
stance, and  is  remediable  by  motion,  and  not  by  demurrer, 
and  is  waived  by  pleading  over.  In  an  action  by  the  grantor 
against  the  grantee,  to  foreclose  a  purchase-money  mortgage, 
the  defendant  pleaded  that  "the  plaintiff  was  not  seized  in 
fee,"  etc.,  negativing  successively  all  the  covenants  in  his 
deed.  The  plaintiff,  instead  of  alleging  that  he  was  seized, 
etc.,  simply  denied  "  that  he  was  not  seized,"  etc.,  and  in  this 
way  met  each  of  the  negative  allegations  of  the  answer.  A 
demurrer  for  insufficiency  was  overruled,  on  the  ground  that 
the  reply,  though  defective  in  form,  was  good  in  substance, 

iSteph.  PI.  388.  SEngle  v.  Bugbee,  40  Minn.  492. 

« Steph.  PI.  389.  Cf.  Frisch  v.  Caler,  21  Cal.  71. 


361  MATTERS  OF  FORM.  §361 

and  should  have  been  attacked  by  motion,  and  not  by  de- 
murrer.i 

361.  Negatives  Pregnant. — A  very  common  fault  in 
pleading  is  the  denial  of  some  particular  averment  in  such 
form  as  to  impliedly  admit  a  part  of  what  is  apparently  con- 
troverted. Such  evasive  and  ambiguous  form  of  denial  is 
called  a  negative  pregnant,^  because  it  is  an  express  denial, 
pregnant  with  an  implied  admission.  This  fault  comes  from 
framing  a  denial  in  the  same  words  used  in  the  allegation 
denied,  and  arises  mainly  in  two  instances.  The  first  is 
where  the  allegation  traversed  is  that  of  a  single  fact  with 
some  qualifying  words  added,  and  the  traverse  is  in  ipsis 
verbis.  For  example,  if  a  complaint  allege  that  on  the  first 
day  of  June,  plaintiff  sold  and  delivered  to  defendant  one 
horse,  and  the  answer  deny  "  that  on  the  first  day  of  June 
plaintiff  sold  and  delivered  to  defendant  one  horse,"  the  de- 
nial is  pregnant  with  the  implied  admission  that  on  some 
other  day  there  was  the  sale  and  delivery  alleged,  and  only 
the  alleged  date  is  traversed.  The  other  instance  is  where 
two  or  more  facts  are  stated  conjunctively,  and  the  denial  is 
in  the  same  words.  For  example,  if  a  complaint  allege  that 
the  defendant  "  wrongfully  and  forcibly  "  entered,  a  denial 
that  he  "  wrongfully  and  forcibly  "  entered,  admits  the  entry, 
and  denies  only  the  force  or  the  wrongfulness,  and  makes  it 
uncertain  which  of  these  is  controverted.^  But  Avhere  several 
facts  are  stated  conjunctively,  and  all  of  them,  taken  to- 
gether, are  essential  to  constitute  a  material  allegation,  a  con- 
junctive denial  is  good  on  demurrer ;  *  because  the  concur- 
rence of  all  the  several  facts  is  requisite  to  make  any  of  them 
operative,  and  the  conjunctive  denial  negatives  such  concur- 
rence. 

The  fault  in  a  negative  pregnant  is,  generally,  that  of  am- 
biguity and  uncertainty.  If  a  plaintiff  charge  that  defendant 
negligently  kept  a  fire,  whereby  the  plaintiff's  house   was 

1  Flanders  v.  McVickar,  7  Wis.  67 ;  Gould  PI.  vi.  29-36 ;  Bliss  PL 
372.  332  ;  Pom.  Rem.  618-623. 

2  Ante,  135.  *  Miller  v.  Tobin,  18  Fed.   Rep. 
8  Steph.  PI.  385,  and  App.  note    609,  614. 


§  362  GENERAL  RULES  OF  STATEMENT.  3(32 

burned,  and  the  defendant  answer  that  the  plaintiff's  house 
was  not  burned  by  the  defendant's  negligence  in  keeping  his 
fire,  such  traverse  would  have  two  intendments — one,  that 
the  house  was  not  burned  ;  the  other,  that  it  was  burned,  but 
not  by  reason  of  defendant's  negligence ;  and  the  plaintiff 
could  not  know  upon  which  of  the  two  matters  the  conten- 
tion would  be  rested. 

362.  Negatives  Pregnant,  Continued. — In  an  action  for 
damages  caused  by  the  negligence  of  defendant  in  leaving 
open  and  unguarded  a  ditch  in  the  highway,  the  complaint 
alleged  that  the  plaintiff  fell  into  the  ditch  "  without  any 
fault  or  want  of  care  on  his  part."  The  answer  denied  "  that 
the  plaintiff,  without  any  fault  or  want  of  care  on  his  part, 
did  fall  therein."  It  was  held  that  this  denial  put  in  issue, 
both  the  falling  into  the  ditch,  and  the  exercise  of  care  by 
the  plaintiff.^  In  the  opinion,  tlie  court  refers  to  and  follows 
the  case  of  Lawrence  v.  Williams,  decided  by  the  same  court, 
but  not  reported,  wherein  the  plaintiff  sought  to  recover  real 
estate  from  his  lessee,  on  the  ground  that  he  had  broken  his 
covenant  not  to  underlet  without  the  consent  of  the  lessor. 
The  defendant  answered,  denying  that  "  in  violation  of  the 
said  covenant,  and  without  the  consent  of  plaintiff,  he  had 
underlet  the  said  premises  ;  "  and  it  was  held  that  the  denial, 
though  a  negative  pregnant,  put  in  issue  the  subletting.^ 

While  the  negative  pregnant  is  a  vicious  form  of  pleading, 
and  its  use  is  everywhere  condemned,  it  can  not  be  said  that 
a  denial  in  such  form  never  makes  a  material  issue.  It  is 
always  vulnerable  to  a  motion,  and  sometimes  to  demurrer, 
depending  upon  its  form  and  scope.     Upon  principle,  if  the 

iWall  V.  Water  Works  Co.,  18  under  the  particular  circumstances 

N.  Y.  119.     This  case  is  criticised  charged,  or  in  the  particular  way 

in  Baird  v.  Clark,  12  O.  S.  87,  91.  charged,  is  a  denial  that  he  did  it 

2  Wliere  an  answer  contains  a  at  all,  is  to  disregard  the  common- 
negative  pregnant,  and  the  plaint-  est  principles  of  literary  interpre- 
ifif  goes  to  trial  without  availing  tation.  It  is  to  remove  by  construc- 
himself  of  a  motion  to  make  defi-  tion,  the  qualifying  words  from  a 
nite,  it  is  good  practice  to  con-  qualified  statement,  and  to  expand 
strue  the  ambiguous  denial  most  a  restricted  denial  beyond  both  its 
strongly  against  him.  But  to  hold  letter  and  its  spirit, 
that  a  denial  that  one  did  a  thing 


303  MATTERS  OF  FORM.  §363 

admission  implied  in  the  denial  is  such  as  will  maintain  the 
allegation  which  it  attempts  to  traverse,  the  fault  is  one  of 
substance,  and  may  be  taken  advantage  of  by  demurrer ;  but 
if,  notwithstanding  the  implied  admission,  there  is  a  denial  of 
material  matter,  the  fault  is  one  of  form,  and  should  be  cor- 
rected by  motion. 1 

363.  The  Plea  of  Payment. — The  authorities  are  not  at 
one  as  to  whether  payment  is  a  defense  of  new  matter,  to  be 
specially,  pleaded,  or  whether  it  may  be  proved  under  a  gen- 
eral denial.  Proof  of  payment  has  been  admitted  under  a 
general  denial,  where  the  complaint  alleged  that  a  certain 
sum  was  due,^  where  it  alleged  the  indebtedness  generally, 
not  stating  the  facts  which  created  it,^  and  even  where  the 
allegation  of  non-payment  in  the  complaint  was  necessary  to 
a  statement  of  the  right  of  action.'*  In  some  cases,  an  allega- 
tion of  payment  has  been  held  to  be  a  traverse  of  non-pay- 
ment alleged  by  the  plaintiff,  and  therefore  not  requiring  a 
reply  to  make  an  issue.^  In  Indiana,  and  elsewhere  gener- 
ally, payment  is  held  to  be  a  defense  of  new  matter,  that 
must  be  pleaded  in  order  to  be  available.^     In  aii  action  to 

1  Ante,  384.     The  denial  was  held  Frasier  v.  Williams,  15  Minn.  288. 
insufficient  in  substance,  in  Lynd  Cf.  Baird  v.    Clark,    12  O.  S.  87, 
V.  Picket,  7  Minn.  184  ;  Finley  v.  91,   per  Brinkerhoff,  J.     Contra, 
Quirk,  9  Minn.   194  ;  Pottgieser  v.  Bradbury  v.  Cronise,  46  Cal.  287  ; 
Dorn,    16  Minn.   204;   Morgan    v.  Wall  v.  Water  Works  Co. ,  18  N.  Y. 
Booth,  13  Bush,   480;   Harden  v.  119;  Schaetzel  v.  G.  F.  M.  Ins.  Co., 
Atch.  &  Neb.  Ry.  Co.,  4  Neb.  521  ;  22  Wis.  412  ;  McMurphy  v.  Walker, 
Leroux  v.   Murdock,  51  Cal.  541  ;  20  Minn.  382  ;  Kay  v.  Whittaker, 
Larney  v.    Mooney,   50  Cal.    610 ;  44  N.  Y.  565  ;  Harris  v.  Shoutz,  1 
Scoville  V.    Barney,   4    Neb.    288;  Mont.  212  ;  First  Nat.  Bank,  etc.,  v. 
Moser  v.  Jenkins,  5  Neb.  447  ;  Rob-  Hogan,  47  Mo.  472. 
bins  V.  Lincoln,  12  Wis.  1  ;  Wood-  ^wTetmore  v.  San  Francisco,  44 
worth  V.  Knowlton,  22  Cal.   162  ;  Cal.    294,  299 ;  Davany  v.    Eggen- 
Fitch  V.  Bunch,  30  Cal.  208  ;  Reed  hoff,  43  Cal.  395,  397. 
V.   Calderwood,  33  Cal.  109 ;  Coal  3  Morley  v.  Smith,   4  Kan.   183 ; 
Co.  V.  Sanita.  Assn.,  7  Utah,  158;  Parker  v.  Hays,  7  Kan.  412. 
Natl.  Bank  v.  Meerwaldt,  8  Wash.  *  Knapp  v.  Roche,  94  N.  Y.  329. 
630  ;   Breckinridge  v.   Am.    Cent.  *  Frisch  v.  Caler,  21  Cal.  71  ;  Van- 
Ins.    Co.,   87  Mo.  62;  Stewart  v.  Gieson  v.  VanGieson,  10  N.  Y.  316 ; 
Budd,  7  Mont.  573 ;  Sheldon,  Hoyt  McArdle  v.  McArdle,  12  Minn.  98. 
&  Co.  V.  Middleton,  10  Iowa,  17  ;  Cf.  Stevens  v.  Thompson,  5  Kan. 
James    v.    McPhee,   9  Colo.    486  ;  305. 
Richardson  v.  Smith,  29  Cal.  529;  eHubler  v.   PuUen,   9  Ind.   273; 


§  363  GENERAL  RULES  OF  STATEMENT.  364 

recover  a  balance  due,  it  has  generally  been  held  that  pay- 
ments may  be  proved  under  a  general  denial,  because  the 
claim  and  the  denial  as  to  a  balance  necessarily  involve  an 
inquiry  as  to  payments.^ 

These  diverse  holdings  may  not  be  reconcilable  upon  prin- 
ciple. It  can  not  be  maintained,  upon  principle,  that  pay- 
ment is  always  a  defense  of  new  matter,  or,  perhaps,  that  it 
may  not,  sometimes,  be  proved  under  a  denial.  Where  non- 
payment is  not  alleged  in  the  complaint,  or,  if  alleged,  is  not 
necessary  as  an  element  of  the  cause  of  action  stated,  payment 
is  a  defense  of  new  matter,  to  be  pleaded  in  confession  and 
avoidance.  But  where  the  complaint  necessarily  alleges  non- 
payment as  the  delict  of  the  defendant,  and  hence  an  indis- 
pensable element  of  the  cause  of  action,  an  allegation  of  pay- 
ment by  the  defendant  is  simply  an  affirmative  traverse  of 
such  negative  averment,  and  makes  an  issue.  In  such  case, 
the  allegation  of  non-payment  is  not  anticipating  a  defense, 
for  it  is  a  requisite  part  of  the  plaintiff's  cause  of  action ;  and 
the  allegation  of  payment  is  not  new  matter,  for  it  does  not 
confess  and  avoid.  No  reply  is  needed,  for  the  reason  that 
the  assertion  of  payment  is  not  new  matter ;  besides,  a  reply 
would  only  be  a  needless  repetition  of  the  denial  already 
made. 

The  proper  way  to  plead  payment,  whether  by  way  of  con- 
fession and  avoidance,  or  by  way  of  traverse,  is  to  assert  it 
affirmatively.  But  under  the  rule  that  the  denial  of  a  nega- 
tive averment  is  a  defect  of  form,  and  not  of  substance,^  it 
might  not  be  error,  though  a  practice  not  to  be  tolerated,  to 
admit  evidence  of  payment,  under  a  denial  of  alleged  non- 
payment. 

Payment  made  pending  the  action  can  be  asserted  only  as 
new  matter,  and  by  means  of  a  supplemental  pleading.^ 

Baker  v.  Kistler,  13  Ind.  63  ;  Knapp  Elwee  v.  Hutchinson,  10  S.  C.  436. 

V.   Bunals,  37  Wis.  135  ;  Mohr  v.  Contra,  McKyring  v.  Bull,  16  N. 

Barnes,   4  Colo.    350 ;   Fewster  v.  Y.  297. 

Gtoddard,  25  O.  S.  276  ;  Everett  v.  2  Ante,  360. 

Lockwood,  8  Hun,  356.  8  Hall  v.  Olney,  65  Barb.  27  ;  Jes- 

iQuin  V.    Lloyd,   41  N.  Y.  349;  sup  v.  King,  4  Cal.  331.     Cf.  Heg- 

White  V.  Smith,  46  N.  Y.  418  ;  Mc-  ler  v.  Eddy,  53  Cal.  597,  as  to  ten- 


365  MATTERS  OF  FORM.  §  364 

364.  Denial  for  Want  of  Knowledge  or  Information. — 

All  material  facts  alleged  in  a  complaint,  or  in  an  answer  of 
new  matter,  and  not  traversed  by  the  adversary  party,  are, 
for  the  purposes  of  the  action,  admitted  by  him  to  be  true ;  ^ 
and  nearly  all  the  codes  require  the  pleadings,  botli  of  fact 
and  of  denial,  to  be  verified  upon  oath.  The  object  of  these 
requirements  is,  to  compel  the  admission  of  what  can  not  con- 
scientiously be  denied,  and  to  limit  the  contention  to  such 
statements  and  denials  as  the  parties  are  willing  to  swear  to. 
Under  these  restrictions,  a  party  may  allege  only  such  facts 
as  he  believes  to  exist,  and  he  may  deny  such  as  he  does  not 
believe.  But  it  may  sometimes  be,  that  a  party,  from  want 
of  knowledge  or  information,  is  not  able  to  form  a  belief  as 
to  the  truth  or  falsity  of  a  fact  alleged  against  him,  and  so  is 
unable  conscientiously  to  deny  it ;  and  yet  it  would  obviously 
be  unfair  to  him,  and  not  in  the  interest  of  justice,  to  impose 
upon  him  tlie  same  consequences  as  if  he  had  such  belief,  and 
voluntarily  chose  not  to  controvert  the  matter  alleged  against 
him.  We  have  seen  that  in  such  case  a  party  may  not  an- 
swer that  he  can  not  admit  the  facts  alleged  against  him,  and 
that  he  calls  upon  his  adversary  for  proof.^ 

For  the  protection  of  one  who  is  thus  unable  to  form  a  be- 
lief respecting  facts  alleged  against  him,  he  is  allowed  to  put 
them  in  issue  by  simply  denying  that  he  has  knowledge  or 
information  concerning  them  sufficient  to  form  a  belief.^  In 
some  states,  this  right  is  secured  by  statute ;  in  others,  it  is 
held  to  exist  without  statute.  A  traverse  made  under  favor 
of  this  rule  must  deny  both  knowledge  and  information. 
Denial  of  "  knowledge  sufficient  to  form  a  belief,"  or  of  in- 


der  pending  the  action  ;    Mitchell  Iowa,  669  ;  Maxim  v.  Wedge,   69 

V.  Allen,  25  Hun,  543.  Wis.  547  ;  Grocers'  Bank  v.  O'Rorke 

^  Ante,  234.  6   Hun,    18  ;    Meehan    v.   Savings 

2  Ante,  230;  Bently  v.  Dorcas,  11  Bk.,  5  Hun,  439;  F.  &   M.    Bank 

O.  S.  398 ;  Bldg.  Assn.  V.  Clark,  43  v.  Bd.   of    Aid.,    75    N.    C.     45; 

O.  S.  427  ;  Sheldon,  Hoyt  &  Co.  v.  Sherman    v.    Osborn,    8  Oreg.  6G  ; 

Middleton,  10  Iowa,  17.  Ninde  v.  Oskaloosa,  55  Iowa,  207 , 

8  Treadwell  v.   Comrs.,  11  O.  S.  Neuberger  v.  Webb,  24  Hun,  347, 

183  ;  Jackson  Sharp  Co.  v.  Holland,  where   the  answer  was  verified  by 

14  Fla.  384  ;    Carr  v.  Bosworth,  68  the  attorney. 


§  365  GENERAL  RULES  OF  STATEMENT.  3i;;j 

formation,  omitting  the  word  "knowledge,"  is  not  suffi- 
cient.^ 

Upon  principle,  it  would  seem  that  the  proper  form  for  such 
traverse  would  be,  that  the  party  has  not  knowledge  or  infor« 
mation  concerning  the  facts  stated  by  his  adversary  sufficient 
to  form  a  belief  as  to  their  truth,  and  he  therefore  denies  the 
same.  Without  a  denial  of  the  facts,  there  is  no  traverse 
thereof,  except  where  the  statute  arbitrarily  makes  a  mere 
denial  of  knowledge  or  information  operate  as  a  traverse. 
But  the  weight  of  authority  seems  not  to  require  such  denial 
of  the  facts ;  ^  and  in  some  cases,  the  addition  of  a  denial  has 
been  criticised  as  inconsistent  with  the  averment  of  inability 
to  form  a  belief.^ 

A  party  may  not  traverse  by  denial  of  knowledge  or  infor- 
mation, where  the  facts  traversed  are  such  that  he  must 
necessarily  know  whether  they  are  true  or  false,*  or  where 
they  are  presumed  to  be  within  his  knowledge.^ 

365.  Written  Instruments,  How  Pleaded. — When  a 
written  instrument  is  to  be  pleaded,  whether  as  the  ground 
of  an  action,  or  as  a  defense,  it  is  important  to  determine 
whether  the  pleader  should  state  only  the  substance  of  the 
instrument,  or  should  set  out  its  terms  in  Tioeo  verba.  The 
common-law  rule  requires  such  instrument  to  be  stated  accord- 

1  Humphreys  v.  Call,  9  Cal.  59 ;  371,  note  ;  Flood  v.  Reynolds,  13 
Eltxjn  V.  Markhara,  20  Barb.  343 ;  How.  Pr.  112  ;  The  Holladay  Case, 
Heye  v.  BoUes,  33  How.  Pr.  266  ;  27  Fed.  Rep.  830,  841  ;  Claflin  v. 
Robbins  v.  Lincoln,  12  Wis.  1  ;  Reese,  54  Iowa,  544.  Contra, 
Hastings  v.  Gevynn,  12  Wis.  672;  Tread  well  v.  Comrs.,  11  O.  S.  183. 
Mead  v.  Day,  54  Miss.  58 ;  Sayre  Cf.  Natl.  Bank  v.  Meerwaldt,  8 
V.  Cushing,  7  Abb.  Pr.  371  ;  Terrill  Wash.  630. 

V.    Jennings,    1  Met.    (Ky.)    450;  ^  The  Holladay  Case,  27  Fed.  Rep. 

Manny  v.    French,  23  Iowa,   250 ;  830 ;    Flood  v.  Reynolds,  13  How. 

Claflin    V.    Reese,    54    Iowa,    544 ;  Pr.  112. 

Greer  v.  Covington,   83  Ky.   410 ;  *  Ketcham    v.   Zerega,    1    E.   D. 

Ketcham  v.  Zerega,  1  E.  D.  Smith,  Smith,  553  ;  Collart  v.  Fisk,  38  Wis. 

553  ;  James  v.  McPhee,  9  Colo.  486.  238  ;  Edwards  v.  Lent,  8  How.  Pr, 

Cf.  Gas  Co.  V.  San  Francisco,  9  Cal.  28. 

453  ;  Curtis  v.  Richards,  9  Cal.  33  ;  «  Fales  v.   Hicks,    12    How.   Pr. 

Naftzger  v.  Gregg,  99  Cal.  83.  153  ;  Beebe  v.  Marvin,  17  Abb.  P». 

2  Meehan  V.  Savings  Bank,  5  Hun,  194  ;  Wing  v.  Dugan,  8  Bush,  583 ; 
439  ;  Sackett  t.  Havens,  7  Abb.  Pr.  Goodell  v.  Blumer,  41  Wis.  436. 


367  MATTERS  OF  FORM.  §  365 

ing  to  its  legal  effect,  and  not  according  to  its  terms  or  form  ;  ^ 
that  is,  its  legal  substance,  as  distinguished  from  its  literal 
substance,  is  to  be  stated,  and  this  only  so  far  as  may  be 
material  to  the  cause  or  defense.  But  this  requirement  does 
not,  in  all  cases,  prohibit  the  employment  of  the  very  words 
of  the  instrument.^ 

The  Reformed  Procedure,  following  the  common-law  rule, 
and  adhering  also  to  the  fundamental  doctrine  that  only 
operative  facts,  and  neither  the  law  nor  the  evidential  facts, 
are  to  be  stated,  requires  such  instrument  to  be  pleaded 
according  to  its  legal  effect.^  And  yet,  in  some  instances, 
where  the  language  of  the  instrument  is  itself  a  concise  state- 
ment of  its  legal  substance  and  effect,  its  exact  words  may 
be  used,*  so  far  as  may  be  necessary  to  display  a  right  of  action 
thereon.  But  when  the  exact  words  of  the  instrument  are  so 
employed  in  the  complaint,  only  so  much  thereof  as  will  show 
the  primary  right  of  the  plaintiff  and  tlie  correlative  duty  of 
the  defendant  should  be  stated.^  This  is  all  that  can  be 
material  to  the  action ;  and  this,  with  an  allegation  of  the 
breach  or  delict,  will  disclose  the  remedial  right,  and  consti- 
tute the  cause  of  action. 

If  the  action  or  defense  will  necessarily  involve  tlie  con- 
struction of  some  part  of  the  instrument  pleaded,  such  part 
thereof  may  properly  be  set  out  in  ipsissimis  verbis,  so  as  to 
bring  it  at  once  upon  the  record  and  to  the  attention  of  the 
court ;  and  when,  in  stating  a  right  of  action  or  a  defense 
founded  upon  a  written  instrument,  it  becomes  necessary  to 
set  out  substantially  the  whole  of  it,  the  entire  instrument  is 

1  1  Chit.  PI.  305  ;  Steph.  PI.  390 ;  Kramer,  14  Kan.  101  ;  Prindle  v 
Gould  PI.  iii.  174.  Caruthers,  15  N.  Y.  425 ;  Slack  v. 

2  1  Chit.  PI.  306  ;  United  States  Heath,  4  E.  D.  Smith,  95,  109.  Cf. 
V.  Morris,  10  Wheat.  246.  Crawford   v.    Satterfield,   27  O.  S. 

8  Joseph   V.   Holt,   37  Cal.   250  ;  421. 

Jones  V.  Louderman,  39  Mo.  287;  ^  Dorrington  v.  Meyer,  8  Neb.  211 ; 

Bateson  v.  Clark,  37  Mo.  31.  Estes  v.  Farnham,  11  Minn.  312  ; 

*  Bliss  PI.  158 ;   Maxwell  PL  78  ;  D.  H.  &  I.  Ry.  Co.  v.  Forbes,  30 

Boone  PI.  135;  Swan  PI.  198;    Jo-  Mich.  165;  Rollins  v.  Lumber  Co., 

seph  V.  Holt,  37  Cal.  250  ;  Stoddard  21  Minn.  5  ;   Henry  v.  Cleland,  14 

V.  Treadwell,  26  Cal.  294  ;  Murdock  Johns.  400. 
V.   Brooks,   38  Cal.    596 ;   Budd  v. 


g  366        GENERAL  RULES  OF  STATEMENT.        36§ 

sometimes  allowed  to  be  copied  into  the  pleading,  accompanied 
by  allegations  of  its  execution,  performance  of  conditions,  and 
the  breaches  complained  of.^ 

366.  Written  Instruments,  Continued. — The  general 
doctrine  of  the  Reformed  Procedure,  resting  upon  both  prin- 
ciple and  authority,  is,  that  written  instruments,  other  than 
those  for  the  unconditional  payment  of  money  only,  should 
not  be  made  a  part  of  the  pleading ;  and  where  an  instru- 
ment contains  provisions  not  involved  in  the  action,  and  not 
relevant  thereto,  and  is  copied  into  the  pleading,  or  other- 
wise made  part  thereof,  the  irrelevant  matter,  or  the  entire- 
copy,  should,  on  motion,  be  stricken  out,  so  as  to  disencum- 
ber the  pleading,  and  secure  certainty  and  materiality  in  the 
issue.2  To  illustrate  the  foregoing  rules,  in  an  action  for 
rent,  a  lease,  containing  numerous  stipulations  other  than  a 
promise  to  pay  rent,  should  not  be  made  part  of  the  com- 
plaint ;  and  in  an  action  for  breach  of  one  among  several 
covenants  in  a  deed,  the  entire  deed  should  not  be  set  out  in 
the  complaint.  But  in  such  action,  after  alleging  that,  hy 
deed  duly  executed  and  delivered,  the  defendant  sold  and 
conveyed  to  the  plaintiff  certain  lands,  it  would  not  be  im- 
proper to  state  that  by  the  deed  the  defendant  entered  into  a 
covenant  in  the  words  following,  and  then  to  copy  the  cove- 
nant upon  which  the  action  is  founded,  provided  the  language 
of  the  covenant  is  so  concise  and  definite  as  to  make  its  legal 
substance  identical  with  its  literal  substance  ;  for  this  would 
be  a  concise  and  definite  statement  of  a  material  operative 
fact,  and  of  nothing  more. 

The  reason  for  the  common-law  rule  requiring  a  written 
instrument  to  be  stated  according  to  its  legal  effect,  and  not 
according  to  its  terms  or  form,  seems  to  have  been,  that 
since  such  instrument  must  ultimately  be  considered  accord- 
ing to  its  legal  effect,  to  plead  it  in  terms  or  form  only,  would 
be  an  indirect  and  circuitous  method  of  allegation.^  But  the 
true  ground  for  the  rule  is,  that  the  writing  is  matter  of 

1  Swan  PI.  199.  »  Steph.  PL  390. 

2  Swan  PI.  197.     Cf.  Crawford  v. 
Satterfield,  27  O.  S.  421,  425. 


369  MATTERS  OF  FORM.  §  367 

evidence,  and  therefore  ought  not  to  be  pleaded ;  while  the 
operative  facts — the  facts  that  should  be  pleaded,  are  those 
evidenced  by  the  writing.  The  operative  facts  are,  that  the 
parties  have  agreed  thus  and  thus  ;  not  that  they  liave  written 
thus  and  thus.  If  a  contract  rest  in  parol,  it  is  to  be  pleaded 
by  stating  the  substance  and  effect  of  the  agreement ;  not 
by  setting  out  what  each  party  said,  for  that  is  only  the  evi- 
dence of  the  agreement.  The  principle  of  pleading  is  not 
changed,  if  what  is  said  by  the  parties  is  said  in  writing.^ 

From  what  has  been  said,  it  will  be  seen  that  to  plead  a 
written  instrument,  other  than  for  the  unconditional  payment 
of  money  only,  by  setting  out  its  exact  words,  is  a  clear  viola- 
tion of  a  general  principle,  and  should  be  sanctioned  only  in 
exceptional  cases  ;  and  where  such  method  of  pleading  will, 
by  introducing  irrelevant  matter,  obscure  the  precise  nature 
of  the  claim  or  defense,  or  materially  encumber  the  record, 
it  should  not  be  permitted. 

367.  Short  Forms  of  Complaint. — Some  of  the  codes 
provide  for  short  forms  of  complaint  in  certain  actions,  by 
prescribing  what  statements  shall  be  sufficient  to  constitute 
a  cause  of  action  therein,  or  how  certain  requisite  facts  may 
be  averred.  It  is  provided,  in  some  states,  that  in  an  action, 
counter-claim,  or  set-off,  founded  upon  an  account,  or  upon 
an  instrument  for  the  unconditional  payment  of  money  only, 
it  shall  be  sufficient  for  the  party  to  set  out  a  copy  of  the 
account  or  instrument,  with  its  credits  and  indorsements, 
and  to  state  that  there  is  due  to  him  thereon,  from  tlie  ad- 
verse party,  a  specified  sum,  which  he  claims,  with  interest. 

These  provisions  are  in  direct  conflict  with  the  general  re- 
quirement that  the  complaint  shall  contain  a  statement  of 
operative  facts  constituting  a  right  of  action,  to  the  exclu- 
sion of  argument  and  of  legal  conclusion,  and  are  indefens- 
ible upon  any  ground  but  that  of  convenience  and  brevity. 
For  the  plaintiff  to  set  out  a  copy  of  the  defendant's  promise 
to  a  third  person,  and  to  assert  that  he  claims  a  specified 

1  In  Petersen  v,   Ochs,  40  Iowa,  contract    is    not  admissible  ;  and 

530,   it  was    held  that  where  the  this  is  so,  even  if  the  written  in- 

complaint  alleges  the  contract  sued  strument  be  lost.    But  this  decision 

on  to  be  oral,  evidence  of  a  written  must  be  of  doubtful  authority. 
24 


g  368  GENERAL  RULES  OF  STATEMENT.  370 

amount,  due  hira  thereon  from  the  defendant,  may  to  some 
extent  advise  the  defendant  of  the  nature  of  the  demand 
against  him,  but  it  does  not  show  to  the  court,  by  facts 
stated,  that  there  is  cause  for  judicial  interposition.  There 
is  no  allegation  that  the  defendant  executed  the  instrument, 
or  that  he  promised  to  pay  to  the  payee  named  therein ; 
there  is  no  allegation  of  consideration,  of  title  in  the  plaintiff, 
or  of  breach  by  non-payment.  It  is  clear,  however,  that 
these  statutory  provisions  dispense  with  all  allegations  in  a 
complaint,  except  those  specified,  and  that  these  are  arbitrarily 
made  sufficient. 

368.  Short  Forms  of  Complaint,  Continued. — Diffi- 
culty was  experienced  in  adapting  the  authorized  defenses 
to  a  complaint  framed  under  favor  of  these  provisions  ;  for 
the  answer,  unlike  the  complaint,  can  receive  no  aid  from 
this  exceptional  statutory  provision,  and  must  contain  only 
denials  or  statements  of  new  matter ;  ^  and  what  is  not  alleged 
by  the  plaintiff  can  not  be  denied  by  the  defendant,  and  the 
denial  of  an  allegation  that  is  a  mere  legal  conclusion  makes 
an  immaterial  issue.  The  courts  ingeniously  avoided  this 
difficulty,  by  holding  that  the  statements  prescribed  by  the 
statute  imply  and  import  all  that  it  would  otherwise  be 
necessary  to  allege.  And  this  construction — though  it  does 
violence  to  the  true  spirit  of  the  Reformed  Procedure,  and 
gives  to  plain  language  a  most  recondite,  rather  than  its  ob- 
vious, meaning — is  perhaps  justified  by  the  legislative  intent, 
that  such  prescribed  statement  shall  be  and  constitute  a 
cause  of  action,  and  by  the  necessity  for  adapting  such  state- 
ment to  the  only  authorized  forms  of  defense. 

It  is  accordingly  held,  that  the  setting  out  of  a  copy  of  an 
account  for  goods  is  an  implied  allegation  of  the  sale  and 
delivery  of  each  item  thereof,  and  that  the  prices  affixed  are 
their  value  ;  and  in  like  manner,  setting  out  a  copy  of  an 
instrument  for  the  payment  of  money  is  an  implied  allega- 
tion of  the  making  and  delivery  of  such  instrument,  a  con- 
sideration therefor,  and  of  the  terms  and  stipulations  therein.^ 

1  Day,  J.,  in  Sargent  v.  Ry.  Co.,  »  Swan  PI.  188  ;  Bliss  PI.  307. 
32  O.  S.  449.  Cf.  Gould  PI.  iu.  19,  note  5. 


371  MATTERS  OF  FORM.  §36S 

And  the  statement  that  a  specified  sum  is  due  the  plaintiff 
from  the  defendant,  on  the  account  or  instrument  so  copied, 
is  equivalent  to  alleging  that  the  plaintiff  owns  the  demand, 
by  some  legal  means  of  deriving  title  tliereto,i  and  that  it  is. 
due  and  unpaid.^  Every  fact  thus  averred  by  implication 
may  be  traversed  as  if  it  were  expressly  alleged ;  ^  for  it  is  to 
this  end  that  the  implications  are  indulged  as  to  the  aver- 
ments of  the  complaint. 

An  arbitrary  rule,  so  out  of  harmony  with  the  scientific 
theory  of  the  reformed  system,  ought  to  be  applied  only 
where  the  case  falls  clearly  within  its  express  provisions ; 
and  the  courts  have  so  restricted  the  application  of  the  pro- 
vision under  consideration.  It  will  not  be  extended  to  a 
case  of  mutual  promises,  embracing  stipulations  other  than 
for  the  payment  of  money  ;  nor  will  it  be  applied  to  unilat- 
eral contracts  of  the  same  character.  An  instrument  that 
requires  something  to  be  done,  or  some  contingency  other 
than  the  mere  lapse  of  time,  to  happen  before  the  promise  to 
pay  becomes  absolute,  such  as  a  guaranty,  or  a  promise  to 
pay  upon  the  delivery  of  goods,  does  not  fall  within  the 
rule  ;  and  in  such  cases,  the  conditional  or  modifying  facts 
must  be  stated.*  An  account,  to  come  within  the  rule, 
must  be  composed  of  items  that  are  the  proper  subject  of 
account.^ 

A  complaint  under  favor  of  this  rule  must  contain  all  the 
matter  specified  by  the  statute  ;  and  if,  in  a  case  within  the 
statute,  such  averments  do  not  show  the  remedial  right  of 
the  plaintiff  against  the  defendant,  the  other  requisite  facts 
must  be  averred.^ 

'  Sargent  v.  S.  &  I.  Ry.  Co.,  32  31  O.   S.   193.     Cf.    Sargent  v.  S. 

O.  S.  449  ;  Prindle  v.  Caruthers,  15  &  I.  Ry.  Co.,  32  O.  S.  449.     It  has 

N.  Y.  425,  429  ;  Meyer  v.  Hibsher,  been  said  that  the  giving  of  a  copy 

47  N.  Y.   269.     Cf.  Tisen  v.  Han-  of  the  indorsements  on  negotiable 

ford,  31  O.  S.  193.  paper  is,  by  such  statute,  made  the 

2  Mayes  v.  Goldsmith,  58  Ind.  94 ;  equivalent  of  the  special  averments 

Johnson  v.  Klilgore,  39  Ind.  147.  otherwise    required    to    show    the 

*  Swan  Pi.  188.  rights  of  a  bona  fide  indorsee  be- 

*  Tooker  v.  Amoux,  76  N.  Y.  397.  fore  maturity.    Per  McIlvaike,  J.» 
'  Swan  PI.  183.  in  Tisen  v.  Hanford,  supra. 
•Bliss  PI.  306 ;  Tisen  v.  Hanford, 


^  369  GENERAL  RULES  OF  STATEMENT.  372 

360.  Use  of  the  Common  Counts. — In  the  common-law 
procedure,  there  are  certain  modifications  of  the  action  of 
assumpsit,  called  the  "  common  counts."  ^  These  forms  are 
much  used  at  common  law,  on  account  of  their  brevity  and 
convenience.  The  declaration  in  the  common  counts  relies 
upon  an  implied  promise,  and  states  legal  conclusions,  and 
the  legal  effect  of  operative  facts,  instead  of  the  facts  them- 
selves ;  and  it  sometimes  conceals,  rather  than  discloses,  the 
real  facts  relied  upon  for  relief.  For  example,  in  indebitatus 
assumpsit,  for  money  had  and  received,  the  allegation  that 
the  defendant  was  indebted  to  the  plaintiff  for  money  had 
and  received  by  him  to  the  plaintiff's  use,  might  relate  to  a 
contract,  to  a  tort,  to  a  mistake,  or  to  a  fraud ;  and  any  of 
these  might  be  proved  on  the  trial. 

Notwithstanding  the  unscientific  character  of  the  common 
counts,  their  use  is  permitted  in  many,  perhaps  in  most,  of 
the  states  that  have  adopted  the  Reformed  Procedure  .^  In 
many  of  the  codes,  provision  is  made,  as  explained  in  the 
last  two  preceding  sections,  for  the  use  of  short  forms  of 
complaint  in  actions  found  on  an  account,  or  on  an  instrument 
for  the  unconditional  payment  of  money.  In  such  cases,  the 
statement  must  include  a  copy  of  the  account  or  instrument 
sued  on — a  requirement  that  does  not  pertain  to  the  common 
counts. 

In  a  large  class  of  cases,  such  as  for  the  recovery  of  money 
paid  to  the  wrong  person  by  mistake,  or  obtained  by  duress 
or  fraud,  where  the  primary  right  arises  ex  lege^  and  not  ex 
contractu^  a  complaint  substantially  in  the  form  of  a  declaration 
in  indebitatus  assumpsit  for  money  had  and  received  has  been 
held  sufficient  in  substance.^  In  such  case,  since  there  is  no 
privity,  and  no  necessity  for  the  fiction  of  a  promise,  the 
allegation  of  a  promise  to  pay  is  not  necessary.  A  like  form 
of  complaint  has  been  sustained  in  an  action  for  goods  sold 


1  Ante,  97,  98.  8  McNutt  v.  Kaufman,  26  O.  S. 

2  Boone  PI.  150,  171,  195  ;  Pom.  127  ;  Am.  Nat.  Bk.  v.  Wheelock,  45 
Rem.  54^544 ;  Bliss  PI.  156,  157,  N.  Y.  Superior  Ct.  205 ;  Grannis 
298,  299 ;  Swan  PI.  176-180.  Cf.  v.  Hooker,  29  Wis.  65  ;  Ball  v. 
Brown  v.  Board  of  Ed.,  103  Cal.  531.  Fulton  Co.,  31  Ark.  379. 


373  MATTERS  OF  FORM.  ^310 

and  delivered ;  ^  and  for  money  paid  and  expended  for  the 
use  and  benefit  of  defendant,  and  at  his  instance  and  request ;  ^ 
and  for  work  and  labor  performed  by  plaintiff  for  defendant, 
and  at  his  request.^  Where,  by  reason  of  sickness,  there  is 
partial  non-performance  of  a  contract  for  personal  services, 
and  payment  was  to  be  made  at  its  completion,  at  an  agreed 
rate  per  da}^  recovery  for  the  work  done  can  be  had  only  on 
a  quantum  meruit,  and  not  on  the  contract.*  And  where  an 
ex[)iess  contract  has  been  fully  performed,  except  payment 
by  the  defendant,  the  plaintiff  may,  under  the  new  proced- 
uje  as  under  the  old,  sue  on  an  implied  assumpsit  instead  of 
the  express  promise  to  pay,  using  the  common  count  on  a 
quantum  meruit.^  The  proof,  on  the  trial,  of  the  agreed  price 
is  held  not  to  make  a  variance,  but  the  stipulated  price  be- 
comes the  quantum  meruit  in  the  case.^ 

This  authorized  use  of  the  common  counts  has  been  criti- 
cised as  a  violation  of  the  requirement  that  the  cause  of  action 
shall  be  a  plain  statement  of  the  operative  facts;  and  the 
practice  has  been  condemned  by  some  writers.''  It  must  be 
borne  in  mind,  however,  that  pleading  is  only  a  means  to  an 
end,  and  that  principle  may  sometimes  yield  to  convenience, 
without  detriment  to  the  principle. 

370.  Attaching  Copy  of  Instrument  Sued  on. — At 
common  law,  when  either  party  claims  or  justifies  under  a 

1  Allen  V.  Patterson,  7  N.  Y.  476  ;  Kan.  563  ;  Friermuth  v.  Friermuth, 
Abadie   v.    Carrillo,    32  Cal.    173 ;  46  Cal.  42.     Cf.  Woolen  Mills  Co. 
Kerstatter    v.    Raymond,    10    Ind.  v.    Titus,   35    O.  S.   253.      Contra, 
199  ;    Magee  v.  Kast,  49  Cal.  141  ;  Bond  v.  Corbett,  3  Minn.  348. 
Meagher  v.  Morgan,  3  Kan.  372.  ^fgHg  y.  Vestvali,  2  Keyes,  152. 

2  DeWitt  V.  Porter,  13  Cal.  171  ;  Cf.  Sussdorf  v.  Schmidt,  55  N.  Y. 
Meagher  v.  Morgan,  3  Kan.  372.  319,  324. 

8  Pavisich  v.  Bean,  48  Cal.  364  ;  ^  Bond  v.  Corbett,  3  Minn.  248  . 

Carroll  v.  Paul,  16  Mo.   226  ;  Wil-  Bowen   v.  Emerson,  3  Oreg.   452. 

kins  V.  Stidger,  22  Cal.  231.  "  In  all  these  rulings  concerning 

*  Green  v.  Gilbert,  31  Wis.  395.  the  use  of  the  common  counts,  the 

5  Farron  v.  Sherwood,  17  N.  Y.  courts  have  overlooked  the  funda- 

227  ;     Hosley  v.  Black,   28  N.  Y.  mental  conception  of  the  reformed 

438  ;  Hurst  v.  Litchfield,  39  N.  Y.  pleading,  and  have  abandoned  its 

377  ;  Stout  v.  St.  L.  Tribune  Co.,  52  essential  principles."     Pom.  Rem. 

Mo.  342 ;  Brown  v.  Perry,  14  Ind.  544. 

32 ;    Emslie    v.    Leavenworth,    20 


g  370  GENERAL  RULES  OF  STATEMENT.  37 ^ 

deed,  he  is  required  to  produce  it  in  court  simultaneously 
with  the  pleading  in  which  it  is  asserted.  This  was  called 
making  profert  of  the  instrument.  When  the  pleadings 
were  oral,  this  was  an  actual  production  in  court ;  but  in 
modern  practice,  it  consists  in  a  formal  allegation  that  he 
shows  the  deed  in  court.  The  practical  uses  of  making  profert 
seem  to  be,  that  it  enables  the  court  to  inspect  the  instru- 
ment, and  entitles  the  opposite  party  to  demand  oyer  of  it  ; 
that  is,  to  hear  it  read,  in  order  that  he  might  make  answer 
thereto.^ 

A  like  requirement  is  found  in  many  of  the  codes,  to  the 
effect  that  when  the  action,  counter-claim,  or  set-off  is 
founded  on  an  account,  or  on  a  written  instrument  as  evi- 
dence of  indebtedness,  a  copy  thereof  must  be  attached  to  and 
filed  with  the  pleading ;  and  if  not  so  attached  and  filed,  a 
sufficient  reason  for  the  omission — such  as  its  loss  or  destruc- 
tion, or  the  other  party's  possession  of  it — must  be  stated  in 
the  pleading.2  In  some  of  the  codes  this  requirement  is 
extended  to  all  instruments  that  are  the  foundation  of  the 
action,  or  of  the  cross-demand. 

This  requirement,  whatever  its  scope,  relates  only  to  instru- 
ments that  are  the  foundation  of  the  action,  or  of  a  cross- 
demand  therein.  It  does  not  relate  to  instruments  on  which 
a  mere  defense  is  founded,  nor  to  such  as  are  mere  matters 
of  evidence  in  the  action.  Letters  testamentary,  being  mere 
evidence  of  authority,  need  not  be  so  attached.^  In  an 
action  to  replevy  chattels,  under  a  mortgage  thereof,  the 
chattel  mortgage  need  not  be  attached.*  Whether  this  re- 
quirement is  applicable  in  an  action  on  a  foreign  judgment  is 
not  entirely  clear,  but  the  weight  of  authority  seems  to  be  to 
the  effect  that  the  requirement  relates  only  to  instruments  of 

1  Gould  PI.  viii.  32-64;  Steph.  PI.  Murdock,  38  Mo.  224;  DuU  v. 
159,  426  ;  Evans  PI.  20-22.  Bricker,  76  Pa.  St.  255. 

2  Sargent  v.  S.  &  I.  Ry.  Co.,  32  ^  stilwell  v.  Adams,  29  Ark.  346  ; 
O.  S.  449;  Larimore  v.  Wells,  29  Bright  v.  Currie,  5  Sandf.  433; 
O.  S.  13;  Ryan  v.  Bank  of  Neb.,  Welles  v.  Webster,  9  How.  Pr. 
10  Neb.  524 ;    Bk.  of  Com.  v.  Hoe-  251. 

ber,    8    Mo.    App.    171  ;    Boots   v.        *  Smith  v.  McLean,  24  Iowa,  822. 
Canine,  58  Ind.  450.     Cf.  Hook  v. 


375  MATTERS  OF  FORM.  §  371 

which  the  oritjinal  could  be  filed,  and  that  therefore  a  foreiorn 
judgment  is  not  included.^  An  answer  pleading  a  judgment 
in  bar  need  not  attach  a  copy  ;2  it  is  pleaded  as  mere  defense, 
and  is  matter  of  evidence.  In  an  action  on  a  forfeited  recog- 
nizance, the  recognizance  is  the  foundation  of  the  action, 
and  a  copy  thereof  should  be  attached ;  the  order  of  forfeiture 
is  mere  evidence,  and  a  copy  thereof  need  not  be  attached.^ 
In  an  action  to  recover  on  a  subscription  to  stock,  a  copy  of 
the  subscription  should  be  attached.^  Where  a  sheriff 
justifies  under  a  writ,  he  need  not  attach  a  copy  of  the  writ  ;^ 
his  answer  is  a  mere  defense,  and  the  writ  is  evidence.  For 
like  reason,  in  trespass,  an  answer  that  the  plaintiff  had  con- 
veyed the  property  to  the  defendant  need  not  attach  a  copy 
of  the  deed  ;^  and  in  an  action  against  the  owner  of  property, 
for  leaving  an  excavation  unguarded,  an  answer  alleging 
that  a  builder  was  in  exclusive  possession  and  control,  need 
not,  it  seems,  attach  a  copy  of  the  building  contract.''  But  a 
counter-claim  for  breach  of  covenants  of  title  has  its  foun- 
dation in  the  deed,  and  must  attach  a  copy  thereof.^ 

371.  Attaching  Copy,  Continued. — In  complying  with 
the  requirement  to  attach  and  file  a  copy,  the  paper  so  filed 
should  in  some  way  be  identified,  so  that  the  court  may  know 
that  it  is  the  paper  relied  on  as  the  foundation  of  the  particu- 
lar action.^  It  is  common  practice  to  refer  to  the  copy  in  the 
pleading ;  thus,  "  a  copy  of  which,  marked  '  Exhibit  A,'  is 
hereto  attached  and  herewith  filed."  All  that  is  requisite  is, 
that  it  be  identified,  for  no  paper  identifies  itself.^^     Where 

1  Lytle    V.    Lytle,    37    Ind.    281  ;     Gr.    152.      Contra,    Workman    v. 
Tlinkle  v.  Reid,  43  Ind.  390  ;  Morri-    Campbell,  46  Mo.  305. 

■<on  V.  Fishel,  64  Ind.  177  ;  Judds  v.  ^  Kingsbury    v.     Buchanan,    11 

Dean,  2  Disney,  210.    Cf.  Med.  Coll.  Iowa,  387. 

V.  Newton,  2  Handy,  163.    Contra,  «  Taylor  v.    Cedar  Rapids,   etc., 

Burns  v.  Simpson,  9  Kan.  658  ;  Eller  Ry.  Co. ,  25  Iowa,  871. 

V.  Lacy,  137  Ind.  436.  7  Ryan  v.  Curran,  64  Ind.  345. 

2  Morrison  v.  Fishel,  64  Ind.  177.  «  Patton  v.  Camplin,  63  Ind.  512 ; 
Contra,  Lee  v.  Keister,  11  Iowa,  Nosier  v.  Hunt,  18  Iowa,  212. 

480.  9  Peoria,  etc.,  Ins.  Co.  v.  Walser, 

8  Rheinhart  v.  State,  14  Kan.  318.  22  Ind.  73. 

Cf.  Calvin  v.  State,  12  O.  S.  66.  "  Whitworth  v.  Malcomb,  82  Ind. 

*  Hudson  V.  Plank  Rd.  Co.,  4  G-  454;     Wall    v.    Galvin,     80    Ind. 


§371  GENERAL  RULES  OF  STATEMENT.  ;37(3 

the  same  exhibit  is  to  be  furnished  in  connection  with  several 
causes  of  action,  one  copy  is  sufficient,  if  referred  to  in  each 
cause  of  action ;  ^  and  a  cross-complaint  need  not  attacli  a 
copy,  if  one  is  attached  to,  or  contained  in,  the  complaint.^ 

Where  a  short  form  of  complaint  is  used,  and  tlie  instru- 
ment copied  therein  is  one  of  which  a  copy  is  required  to  be 
attached  and  filed,  or  where  the  entire  instrument  is  other- 
wise embodied  in  the  pleading,  the  copy  so  embodied  in  the 
pleading  is  a  sufficient  compliance  with  the  requirement 
under  consideration,  and  another  copy  need  not  be  attached.^ 
But  where  a  copy  of  the  instrument  is  not  requisite  in  a 
statement  of  the  cause  of  action,  it  is  bad  practice  to  incor- 
porate a  copy  merely  as  a  compliance  with  the  requirement 
to  attach  and  file  a  copy ;  *  for  the  requirement  to  attach  and 
file  a  copy  does  not,  ordinarily,  make  such  copy  a  part  of  the 
pleading.^ 

A  copy,  when  attached  as  an  exhibit,  being  intended  for 
the  information  of  the  adverse  party,  and  not  constituting  a 
part  of  the  pleading,  can  not  be  looked  to  on  demurrer,^ 
except  in  those  jurisdictions  wherein  the  exhibit  is  properly 
made  a  part  of  the  pleading.     The  omission  of  the  exhibit, 

449.     Cf.  Rogers  v.  State,  78  Ind.  Phillips  v.  Evans,  64  Mo.  17  ;  C.  & 

329.      Strictly,    the   identification  F.  Ry.  Co.  v.  Parks,  33  Ark.  13L 

should  be  upon  the  paper  attached  ;  ^  Pearsons    v.   Lee,    2    111.    193  ; 

for  any  reference    thereto   in   the  Curry     v.    Lackey,    35    Mo.    389  ; 

pleading  is  out  of  place.  Baker  v.  Berry,  37  Mo.  306  ;   Bo- 

1  Maxwell  v.  Brooks,  54  Ind.  98 ;  gardus  v.  Trial,  2  111.  63 ;  Gage  v. 

Scotten  V.  Randolph,  96  Ind.  581.  Lewis,  68  111.  604  ;    Hooker  v.  Gal- 

Cf.  School  Tp.  V.  Citizens'  Bk.,  81  ligher,   6    Fla.    351  ;     Watkins    v. 

Ind.    515 ;    Hochstedler    v,    Hoch-  Brunt,    53    Ind.    208  ;    Nathan    v. 

stedler,  108  Ind.  506.  Lewis,  1  Handy,  239 ;  Los  Angeles 

3  Coe  V.  Lindley,  32  Iowa,  437  ;  v.  Signer  et,  50  Cal.  298.    Cf.  Buck- 

Pattison  v.  Vaughan,  40   Ind.  253.  ner  v.  Davis,  29  Ark.  444 ;   Hart- 

Contra,  Campbell  v.  Routt,  42  Ind.  ford  Ins.  Co.  v.  Kahn  (Wyo.),  34 

410.  Pac.  Rep.  895.     Contra,  Ward  v. 

3  Benjamin    v.    Delahay,    3    111.  Clay,    82    Cal.    502 ;    Furgison   v. 

574  ;  Lamson  v.  Falls,  6  Ind.  309  ;  State,  4  G.  Greene,  302  ;  Wesy  v. 

Adams  v.  Dale,  29  Ind.  273.  Hayes,    104  Ind.  251  ;    Burton    v. 

*  Crawford  v.  Satterfield,  27  O.  S.  White,    1    Bush,   9  ;    Blossom     v. 

421  ;    McCampbell  v.   Vastine,   10  Ball,  32  Ind.  115.     Cf.  McDonough 

Iowa,  538.  V.  Kans,  75  Ind.  181. 

»  Larimore  v.  Wells,  29  O.  S.  13 ; 


377  MATTERS  OF  FORM.  §  372 

except  when  it  would  necessarily  be  a  part  of  the  pleading, 
is  not  ground  for  demurrer,  but  maybe  remedied  by  motion  ;  1 
and  is  waived,  if  not  objected  to  at  the  proper  time.^ 

372.  Performance  of  Conditions  Precedent. — When 
performance  of  a  condition  precedent  is  essential  to  the  right 
of  a  party,  performance  thereof,  or  its  legal  equivalent,  must 
be  alleged.^  At  common  law  it  was  necessary  to  set  out  all 
the  facts  that  went  to  show  the  performance ;  showing  the 
time,  place,  and  manner  thereof.^  Under  this  requirement 
many  subtle  distinctions  grew  up  in  relation  to  express  and 
implied  conditions,  and  the  subject  became  one  of  much  per- 
plexity and  embarrassment.  To  avoid  the  inconvenient  pro- 
lixity and  the  perplexing  distinctions,  incident  to  this  re- 
quirement, the  codes  have  generally  provided  that  in  pleading 
the  performance  of  conditions  precedent  in  a  contract,  it  shall 
be  sufficient  to  state  that  the  party  duly  performed  all  the 
conditions  on  his  part  to  be  performed.  This  privilege  of 
^lea^ding  performavit  omnia  is  sustained  by  the  principle  that 
a  more  general  form  of  allegation  is  allowable  where  the  alle- 
gations from  the  other  side  must  reduce  the  pleading  to 
certainty.^ 

The  general  allegation  provided  for  by  the  codes  becomes 
the  equivalent,  in  legal  effect,  of  the  specific  allegations  re- 
quired by  the  common  law,  and  embraces  both  express  and 
implied  conditions,  whether  in  oral  or  written  contracts.  The 
prevailing  view  seems  to  be,  that  this  statutor}'  provision  ap- 
plies only  to  conditions  contained  in  contracts,  and  not  to 
conditions  imposed  by  law.^ 

'  Calvin  v  State,  12  O.  S.  60,  66  ;  2  Kingsbury    v.     Buchanan,    11 

Andrews  v.  Alcorn,  13  Kan.  351  ;  Iowa,    387  ;    Scott  v.  Zartman,  61 

Burns    v.    Simpson,  9    Kan.    658 ;  Ind.  328  ;    Andrews  v.  Alcorn,  13 

Egan  V.  Tewksbury,  32  Ark.   43 ;  Kan.    351  ;    Oyler  v.   Scanlan,   33 

Lash  V.  Christie,  4  Neb.  262 ;  Mul-  O.  S.  308.     Cf.  Peterson  v.  Allen, 

hoUan    v.     Scoggin,  8    Neb.    202.  12  Iowa,  866. 

Contra,  where  the  code  makes  the  ^  Ante,  329. 

copy  a  part  of  the  record.      Sea-  *  Steph.  PI.  356. 

Wright  V.    Coffman.  24   Ind.  414 ;  «  Steph.  PI.  370. 

O.  &  M.  R.  Co.  V.  Nickless,  71  Ind.  e  Bliss  PI.    302  ;    Rhoda  v.  Ala- 

271  ;  Per  Kingman,  C.  J.,  in  Burns  meda  Co.,  52  Cal.  350  :  Graham  v. 

V.  Simpson,  9  Kan.  658,  663.  Machado,  6    Duer,   514.      Contra, 


§373  GENERAL  RULES  OF  STATEMENT.  373 

In  alleging  performance  of  conditions  precedent,  the  better 
course  is  to  use  substantially  the  language  of  the  statute.  It 
has  been  held  sufficient  to  allege  that  "  plaintiffs  did  duly 
perform  all  and  singular  the  conditions  aforesaid  on  their 
part  to  be  performed  ;"i  or  that  "plaintiff  has  fully  per- 
formed all  the  terms  and  conditions  of  said  contract  to  be 
done  and  performed  by  him  in  accordance  therewith."  ^  But 
an  alleofation  that  such  contract  "has  been  a  valid  and  sub- 
sisting  contract  ever  since  the  date  of  its  execution,  and  still 
is  valid  and  binding  "  on  the  party,  is  not  a  sufficient  aver- 
ment of  such  performance  ;  ^  nor  is  an  averment  that  "  the 
whole  of  said  sum  is  now  due."^  And  if  the  pleading  shows 
affirmatively  that  the  condition  has  not  been  performed,  a 
geneial  averment  of  performance  will  have  no  operation.^ 

373.  Performance  of  Conditions  Precedent,  Continued. 
— Where  a  purchaser  of  goods  sues  for  damages  for  their 
non-deliver}^  he  must  show  that  he  was  ready  and  willing  to 
receive  and  pay  for  them  as  delivered ;  and  denial  of  the 
making  of  the  contract  sued  on  does  not  relieve  him  from 
this  requirement.^  Omission  of  an  averment  of  performance 
from  the  complaint  may  be  cured  by  averments  in  subsequent 
pleadings.'  In  an  action  to  recover  the  agreed  price  for  con- 
structing a  building,  it  is  not  sufficient  to  allege  full  per- 
formance of  the  contract,  except  where  the  same  was,  by  the 
consent  of  defendant,  altered  and  waived.  The  terms  of  the 
contract  as  modified  should  be  pleaded,  and  then  perform- 
ance thereof  alleged ;  or  if  an  excuse  or  waiver  is  relied  upon, 
the  facts  constituting  it  should  be  pleaded.^  Under  an  aver- 
ment of  performance,  a  waiver  of  performance,  or  an  excuse 
foi-  non-performance,  can  not  be  shown,^  without  amendment 

Gay  V.  Paine,  5  How.  Pr.  107.      Cf.        ^  Home  Ins.  Co.  v.  Lindsey,  26 

Adams  v.  Sherrill,  14  How.  Pr.  297.  O.  S.  348,  356. 

1  Crawford  v.  Satterfield,  27  O.  S.        «  Simons  v.  Green,  35  O.  S.  104. 
421.     Cf.   Union  Ins.    Co.  v.    Mo-        "^  Dayton  Ins.   Co.    v.    Kelly,  24 
Gookey.  33  O.  S.  .555,  561.  O.  S.  345,  357. 

2  Andreas  v,  Holcombe,  22  Minn.        ^  Smith  v.  Brown,  17  Barb.  431. 
339.  3  Lumbert  v.    Palmer,  29  Iowa, 

8  Phillips   V.    Phillips,    14  O.    S.     104 ;    Livesey  v.  Hotel,  5  Neb.  50 ; 
308.  Oakley  v.    Morton,   11   N.  Y.   26  ; 

« Doyle  V.  Ins.  Co..  44  Cal.  264.         Mehurin  v.  Stone,  37  O.  S.  49. 


379  MATTERS  OF  FORM.  §374 

of  the  pleadings,  which  may  be  allowed,  in  the  discretion  of 
the  court.^ 

A  party  is  not  required  to  adopt  the  brief  general  aver- 
ment of  performance.  He  may  disregard  this  statutory  priv- 
ilege, and  plead  the  specific  facts  showing  performance  ;  but 
he  must  then  plead  with  the  fullness  and  certainty  required 
at  common  law.^ 

If  the  defendant  relies  upon  the  fact  that  any  or  all  of  the 
conditions  have  not  been  performed,  he  should  traverse  the 
general  averment  of  performance  by  a  denial,  and  a  statement 
of  the  particulars  wherein  the  plaintiff  has  failed  to  perform.^ 
Such  enumeration  of  particulars  is  necessary  to  make  the  issue 
definite,  and  is  not  new  matter,  but  a  qualification  of  the 
denial,  and  does  not  call  for  a  reply,  or  relieve  the  plaintiff 
of  tlie  burden  of  proof.*  Such  entire  answer  amounts  only  to 
a  denial.  A  mere  denial  in  such  case,  without  specification 
of  particulars,  would,  no  doubt,  be  good  on  demurrer,^  but 
vulnerable  to  a  motion  to  make  definite. 

374.  Pleading  Judgments. — The  judgment  of  a  court  may 
be  the  ground  of  an  action,  it  may  be  asserted  as  a  set-off,  or 
it  may  be  pleaded  in  bar.  When  a  judgment  is  asserted,  it 
must  appear  that  it  is  valid  and  in  force.  To  be  valid,  a 
judgment  must  be  given  by  a  competent  tribunal,  and  on  a 
proper  occasion ;  in  other  words,  it  must  appear  that  it  was 
given  by  a  court  having  jurisdiction  to  render  the  judgment 
pleaded.  The  requisites  to  such  validity  are,  (1)  that  the 
court  giving  the  judgment  had,  by  the  law,  cognizance  of  the 
subject-matter  of  the  action,  (2)  that  it  had,  by  service  of 
process  or  by  appearance,  jurisdiction  of  the  proper  parties, 
(3)  that  its  action  had  been  invoked  by  adequate  pleadings, 
and  (4)  that  the  judgment  has  not  been  reversed,  modified, 
or  satisfied ;  and  in  pleading  a  judgment,  these  requisites  to 

1  Hosley  v.  Black,  28  N.  Y.  438.  59  ;  Preston  v.  Roberts,  12  Bush, 
Cf.  Livesey  v.  Hotel,  5  Neb.  50.  582. 

2  Home  Ins.  Co.  v.  Duke,  43  Ind.  *  Mehurin  v.  Stone,  37  O.  S.  49, 
418.     Cf.  Hatch  v.  Peet,  23  Barb.  59. 

575.  6  Daniels  v.   Andes    Ins.   Co. ,  2 

«  Mehurin  v.  Stone,  37  O.  S.  49,    Mon.  Ty.  78  ;  Nathan  v.  Lewis,  1 

Handy,  239,  248. 


S  374       GENERAL  RULES  OF  STATEMENT.         ggQ 

its  validity  must  be  alleged,  except  so  far  as  such  allegations 
are  dispensed  with  by  legal  presumptions,  or  by  statutory 
provisions. 

As  to  jurisdiction  of  the  subject-matter,  there  is  a  distinc- 
tion between  courts  of  general  jurisdiction  and  those  of 
limited  and  special  jurisdiction.  As  to  a  court  of  general 
jurisdiction,  there  is  a  presumption  that  it  had  right  to  enter- 
tain the  action,  and  in  pleading  the  judgment  of  such  court, 
it  is  not  necessary  to  allege  the  facts  showing  jurisdiction  of 
either  subject-matter  or  person,  nor  to  set  forth  the  proceed- 
ings.i  It  is  sufficient  in  this  regard,  if  it  appear  that  the 
court  was  of  general  jurisdiction.  Averring  that  the  judg- 
ment was  rendered  by  the  "  Supreme  Court  in  Equity  for  the 
State  of  New  York,"  sufficiently  shows  that  the  court  was  of 
general  jurisdiction. ^  In  pleading  a  judgment  of  a  court  of 
limited  or  special  jurisdiction,  there  is  no  such  presumption, 
and  the  jurisdiction,  both  of  subject-matter  and  of  person, 
must  be  made  to  appear  by  allegation ;  ^  and  the  same  is  true 
where  the  jurisdiction  is  specially  conferred  by  statute, 
whether  the  court  be  of  general  or  of  inferior  jurisdiction.^ 

Where  the  jurisdiction  depends  upon  the  nature  of  the 
cause  of  action,  the  court  may  look  behind  the  judgment 
pleaded  as  the  cause  of  action,  to  see  the  nature  of  the  de- 
mand on  which  it  was  rendered ;  for  while  technically  the 
judgment  merges  the  demand,  the  nature  of  a  demand  is  not 
changed  by  recovering  judgment  upon  it.^ 

^  Freeman  on  Judgm.  453  ;  Dodge  ^  Pennington  v,  Gibson,  16  How. 

V.  Coffin,  15  Kan.  277  ;    Butcher  v.  65. 

Bank  of  Brownsville,  2  Kan.  70  ;  ^  Freeman  on  Judgm.  454  ;    Gil- 

Phelps    V.     Duffy,     11     Nev.     80  ;  bert  v.  York,  111  N.  Y.  544  :  United 

Bi-uckman  v.  Taussig,  7  Colo.  561  ;  States  v.  Clarke,  8  Pet.  436  ;  Turner 

Reid  V.    Boyd,    13    Tex.    241.      It  v.   Roby,  3  N.  Y.  193  ;  Sheldon  v. 

seems  that  this  presumption  applies  Hopkins,  7  Wend.  435. 

to  the  judgments  of  such  courts  in  *  Kellam  v.  Toms,  38  Wis.  592^ 

sister  states.     Rugers  v.  Odell,  39  Cf.  Loop  v.  Gould,  25  Hun,  387 ; 

N.  H.  452  ;  Specklemeyer  v.  Dailey,  Edmiston  v.  Edmiston,  2  Ohio,  251, 

23  Neb.   101 ;  s.  c.  8  Am.  St.  Rep.  per  curiam. 

119 ;    Jarvis  v.  Robinson,  21  Wis.  *  Wisconsin  v.   Pelican  Ins.  Co., 

523;  Tenney  v.  Townsend,  9  Blatchf.  127  U.  S.  265,  292  ;  Betts  v.  Bagley, 

274.  12  Pick.  572  ;  Qark  v.  Rowling,  3 

N.  Y.  216. 


381  MATTERS  OF  FORM.  §375 

375.  Pleading  Judgments,  Continued. — The  codes  have 
generally  provided  that  in  pleading  a  judgment,  or  other  de- 
termination of  a  court,  or  of  an  officer  of  special  jurisdiction, 
it  shall  be  sufficient  to  state  that  such  judgment  or  determina- 
tion "  was  duly  given  or  made."  A  pleading  under  favor  of 
such  provision  should  use  the  words  of  the  statute,  or  words 
of  equivalent  import.^  The  word  "  duly  "  seems  to  be  essen- 
tial.2  An  averment  that  "judgment  was  rendered,"  ^  or  that 
"  a  judgment  was  entered,"  *  is  not  sufficient ;  but  an  allega- 
tion that  plaintiff  recovered  a  judgment  against  defendant, 
and  that  it  was  duly  docketed,  has  been  held  sufficient.^ 

It  has  been  suggested  that  this  provision  of  the  codes  does 
not  apply  to  foreign  judgments  of  courts  of  special  or  limited 
jurisdiction;^  but  the  soundness  of  such  discrimination  has 
well  been  questioned.'^  It  does  apply  to  the  pleading  of  a 
judgment  of  a  court  of  the  United  States,^  and  it  is  the  bet- 
ter opinion  that  it  applies  to  the  judgments  of  courts  of  sister 
states.^ 

If  a  former  judgment  be  pleaded  in  bar,  the  defendant 
must,  in  addition  to  showing  its  validity,  allege  that  it  was 
rendered  in  an  action  between  the  same  parties,  and  wherein 
the  same  right  of  action  was  asserted  and  determined.^''  If 
the  parties  are  not  the  same,  privity  must  be  shown.ii  Upon 
principle,  a  former  adjudication  can  not  be  proved  under  a 


1  Hunt  V.  Butcher,  13  How.  Pr.  ^  Max.  PI.  90  ;  Etz  v.  Wheeler 
538  ;  Edwards  v.  HeUings,  99  Cal.  23  Mo.  App.  449. 

214 ;  Lee  v.  TerbeU,  33  Fed.  Rep.  8  Laidley  v.  Cuinmings,  83  Ky. 

850;    Roys    v.  Lull,   9  Wis.   324;  606.       Cf.    Cutting    v.   Massa,    15 

Young    V.    Wright,    52    Cal.    407.  N.  Y.  St.  Rep.  316. 

Cf.   Culligan    v.    Studebaker,     67  ^  Etz   v.   Wheeler,  23   Mo.  App. 

Mo.  372.  449 ;    Kronberg  v.  Elder,  18  Kan. 

2  Hunt  V.  Butcher,  13  How.  Pr.  150.  Cf.  Lee  v.  TerbeU,  33  Fed. 
538.  Contra,  Warfield  v.  Gard-  Rep.  850  ;  Ault  v.  Zehering,  38  Ind. 
ner's  Admr.,  79Ky.  583.  429,  433;    Archer  v.  Romaine,  14 

8  Young  V.  Wright,  52  Cal.  407.  Wis.  375. 

*  Hunt  V.  Butcher,  13  How.  Pr.  ^  Heatherly  v.  Hadley,  2  Oreg. 

538.  269. 

6  Pierstoff  v.  Jorges,  86  Wis.  128.  "  Brandt  v.  Albers,  6  Neb.  504  ; 

«  McLaughlin  v.  Nichols,  13  Abb.  Goddard  v.   Benson,  15  Abb.   Pr. 

Pr.  244.  191. 


§  376  GENERAL  RULES  OF  STATEMENT.  382 

denial,  and  should  be  specially  pleaded  as  new  matter ;  * 
but  it  has  been  held  that  a  former  recovery  may  be  proved 
under  a  denial,  the  difference  being  that  it  is  not  conclusive 
as  an  estoppel,  when  not  pleaded.^ 

It  is  not  necessary  to  allege  that  a  judgment  sued  on  re- 
mains in  force,  for  it  is  presumed  to  continue  in  force  until 
the  contrary  appears.^ 

376.  Pleading  an  Implied  Promise. — The  superaddition 
of  the  fiction  of  a  promise,  to  the  operative  facts  in  certain 
jural  relations,  in  order  to  bring  them  within  the  formal  re- 
quirements of  the  action  of  assumpsit,  and  the  consequent 
appellation  of  "  implied  contracts,"  have  heretofore  been  ex- 
plained.* Whether,  under  the  reformed  system,  which  has 
abolished  forms  of  action,  and  which  professes  to  dispense 
with  fictions,  a  cause  of  action  on  what  is  commonly  termed 
an  implied  contract  should  allege  a  promise  to  pay,  is  a  ques- 
tion of  practical  importance,  and  one  that  hardly  admits  of  a 
categorical  answer,  either  upon  authority,  or  upon  principle. 
It  would  seem  that  since  the  necessity  that  gave  rise  to  the 
fiction  no  longer  exists,  the  use  of  the  fiction  should  cease  ; 
for  "  fictions  of  law  hold  only  in  respect  of  the  ends  and  pur- 
poses for  which  they  were  invented."^  And  while  this 
rational  view  has  generally  obtained  in  our  courts,^  there  is 
some  confusion  in  the  practice,  resulting  mostly  from  failure 


'  Cane   v.   Crafts,   53    Cal.   135 ;  6  Lord   Mansfteld,  in  Morris  v. 

Fanning  v.  Hib.  Ins.  Co.,  37  O.  S.  Pugh,  3  Burr.  1243. 

344  ;  Hendricks  v.  Decker,  35  Barb.  ^  Pom.  Rem.  538  et  seq.  ;    Bliss 

298  ;  Norris  v.  Amos,  15  Ind.  365 ;  PL  151  et  seq.  ;   Max.  PL  85 ;   Poly 

Ransom  v.  Stanbery,  22  Iowa,  334  ;  v.  Williams,  101  Cal.  648  ;  Wills  v. 

Brazil  v.  Isham,    12  N.  Y.   9,  17  ;  Wills,  34  Ind.  106 ;  Farron  v.  Sher- 

Lockwood  V.   Wildman,    13  Ohio,  wood,  17  N.  Y.  227,  230 ;  Cropsey 

430.  V.  Sweeney,  27  Barb.  310,  312 ;   De 

2  Meiss  V.  Gill,  44  O.  S.  253,  and  La  Guerra  v.  Newhall,  55  Cal.  21 ; 
cases  there  cited ;  Mussey  v.  Per  Ray,  J.,  in  Gwaltney  v.  Can- 
White,  58  Vt.  45.  non,  31  Ind.  227,  228  ;   Higgins  v. 

3  Campbell  v.  Cross,  39  Ind.  155  ;  Germaine,  1  Mont.  230.  Contra, 
Blake  v.  Burley,  9  Iowa,  592 ;  Booth  v.  Farmers  &  Mechanics' 
Masterson  v.  Matthews,  60  Ala.  Nat.  Bk. ,  65  Barb.  457  ;  Per  Smith, 
260  ;  In  re  Baird,  84  Cal.  95.  J.,  in  Bird  v.  Mayer,  8  Wis.  363, 

*  Ante,  95.  367. 


383  MATTERS  OF  FORM.  §  376 

to  distinguish  between  what  may  properly  be  called  "  implied 
contracts,"  and  a  class  of  obligations  imposed  by  law,  in  the 
absence  of  promissory  intention. 

Contract  rights  and  obligations  arise  only  from  the  inten- 
tion of  the  parties;  and  this  intention  may  be  expressed  in 
words,  or  it  may  be  inferred  from  conduct.  In  the  one  case, 
the  intention  to  create  a  right  and  impose  a  duty  is  shown  by 
the  words  employed ;  in  the  other,  it  is  symbolized  by  acts 
and  circumstances.  For  example,  if  A.  sells  to  B.  a  horse, 
for  one  hundred  dollars,  to  be  paid  in  thirty  days,  there  is  an 
express  contract  to  pay  a  fixed  sum,  at  a  stated  time ;  but  if 
B.  says  to  a  merchant,  "  Send  a  barrel  of  your  best  flour  to  my 
house,"  and  the  merchant  sends  it,  B.  has  promised  to  pay  the 
fair  value  of  the  flour,  on  delivery,  though  not  a  word  was 
spoken  about  it.  The  intention  is  as  clear  in  the  one  case  as 
in  the  other ;  the  difference  being  that,  in  the  former  instance, 
the  intention  of  the  parties  is  manifested  by  words,  while  in 
the  latter  it  is  to  be  inferred  from  their  conduct.  In  both 
instances  the  obligation  is  promissory,  and  the  jural  relation 
is  contractual.  An  allegation  that  B.  promised  to  pay  for  the 
flour  would  rest  in  fact,  and  not  in  fiction. 

If  B.  should  tortiously  take  possession  of  the  merchant's 
flour,  he  would  be  legally  liable,  either  in  damages  for  the 
tort,  or  in  assumpsit  for  the  value  of  the  propert}-,  regardless 
of  the  tort;  but  his  liability  would  in  no  sense  be  promissory, 
for  there  was  no  intention  to  pay,  either  express  or  implied. 
The  liability  of  a  husband  or  a  father  for  necessaries,  the  ob- 
ligation of  one  to  return  money  paid  to  him  under  mistake, 
or  obtained  by  duress  or  fraud,  and  the  many  instances  of 
right  to  recover  on  the  ground  that  one  should  not  be  allowed 
to  enrich  himself  unjustly  at  the  expense  of  another,  are  ex- 
amples of  right  and  duty  arising  ex  lege^  and  from  circum- 
stances that  exclude  any  idea  of  contractual  intention.^ 

'  The  Roman  law  distinguished  usual  with  English  critics  to  iden- 
these  obligations  from  implied  con-  tify  the  quasi-contracts  with  im- 
tracts,  and  designated  them  as  plied  contracts,  but  this  is  an  error, 
quasi-contracts.  Sir  Henry  Maine,  for  implied  contracts  are  true  con- 
speaking  of  this  distinction  in  the  tracts,  which  quasi-contracts  are 
Roman  law,  says :    "  It  has  been  not.      In    implied   contracts,  acts 


g  377  GENERAL  RULES  OF  STATEMENT.  384 

377.  Pleading    an    Implied    Promise,     Continued.— 

There  is  no  difference  in  principle  between  an  express  con- 
tract and  an  implied  contract.  The  aggregatio  mentium  ex- 
ists in  both,  and  the  obligation  in  each  arises  from  promissory 
intention.  The  difference  is  in  the  kind  of  evidence  by  which 
the  undertaking  in  the  one  instance  and  in  the  other  is  to  be 
proved;  and  a  cause  of  action  on  either  should  allege  the 
promise  of  the  defendant  to  pay.  For  example,  in  the  sup- 
posed sale  of  flour,  the  plaintiff  should  allege  that  h^sold  and 
delivered  to  defendant  a  barrel  of  flour,  of  the  value  of  so 
much,  which  the  defendant  promised  to  pay  on  delivery.^ 
But  in  the  statement  of  a  right  of  action  arising  purely  ex 
lege^  and  where  the  circumstances  do  not  give  rise  to  the  in- 
ference ^  of  a  promissory  intention,  no  promise  should  be 
alleged. 

Under  the  new  procedure,  as  under  the  old,  one  injured  by 
tort  may,  in  certain  cases,  have  his  election  to  sue  in  tort,  for 
damages,  or  in  contract,  for  the  value  of  the  property .^  To 
entitle  a  plaintiff  to  waive  the  tort,  and  sue  in  contract,  the 

and  circumstances  are  the  symbols  ception  to  which  it  serves  as  an  in- 

of  the  same  ingredients  which  are  dex  is  connected  with  the  concep- 

jsymbolized,   in  express  contracts,  tion  with  which  the  comparison  is 

fey  words  ;  and  whether  a  man  em-  instituted  by  a  strong    superficial 

ploys  one  set  of  symbols  or  the  analogy  or  resemblance.     It  does 

•other  must  be  a  matter  of  indiffer-  not  denote  that  the  two  concep- 

lence  so  far  as  concerns  the  theory  tions  are  the  same,  or  that  they  be- 

of    agreement.      But  a  quasi-con-  long  to  the  same  genus."    Maine's 

tract  is  not  a  contract  at  all.     The  Ancient  Law,  332.     Cf.  Keener  on 

commonest  sample  of  the  class  is  Quasi-Contracts,  3-25  ;    1  Add.  on 

the  relation  subsisting  between  two  Contr.  30,  31;   Hoi.  Jur.  (5th  ed.) 

persons,   one  of  whom    has    paid  233,  and  note  4. 

money  to  the  other  through  mis-  ^  Swan  PI.  174-176.     In  an  action 

take.     The  law,  consulting  the  in-  for  breach  of  engagement  to  marry, 

terests  of  morality,  imposes  an  ob-  the  complaint  must  allege  the  de- 

ligation  on  the  receiver  to  refund,  fendant's  promise  ;   but  an  express 

but  the  very  nature  of  the  transac-  promise  need  not  be  proved.     Proof 

tion  indicates  that  it  is  not  a  con-  of  a  common  intent,  mutually  ac- 

tract,  inasmuch  as  the  convention,  cepted,  is  enough  ;    and  this  may 

the  most    essential    ingredient  of  be  inferred  from  relevant  conduct. 

Contract,  is  wanting.      This  word  declarations,  and  circumstances, 

"quasi,"    prefixed    to  a  term    of  ^  g<^gph_  pi_  52  et  seq. 
Roman  Law,  implies  that  the  con- 


385  MATTERS  OF  FORM.  g378 

tort-feasor  must  have  unjustly  enriched  himself  by  his  tortious 
act.  Impoverishment  of  the  plaintiff  is  not  alone  sufficient.^ 
One  who  assaults  and  beats  another  could  not  be  sued  in 
assumpsit,  but  one  who  steals  and  sells  another's  goods  could 
be.  Tlie  injured  party  suing  in  assumpsit  is  said  to  waive 
the  tort ;  but  strictly  speaking,  he  does  not.  He  waives  dam- 
ages for  the  tort,  and  elects  to  sue  for  the  value,  or  the  pro- 
ceeds, of  his  property.  The  tort  must  nevertheless  be  proved, 
to  sustain  the  action.^ 

Courts  have  differed  as  to  the  way  in  which,  under  the  new 
procedure,  the  plaintiff  shall  indicate  his  election  to  sue  for 
the  value,  and  not  for  damages.  Under  the  old  procedure, 
this  was  indicated  by  the  form  of  action  employed ;  but  since 
these  forms,  and  their  distinguishing  phraseology,  have  been 
abolished,  some  other  means  must  be  resorted  to.  Perhaps 
the  only  logical  means  consistent  with  the  theory  of  the  new 
procedure  is,  to  indicate  such  election  in  the  prayer  for  relief, 
by  designating  the  amount  demanded  as  the  value  of  the  prop- 
erty, instead  of  damages  sustained.  This  is  what  the  election 
really  is,  and  this  is  one  of  the  offices  of  the  prayer  for 
relief.^ 

378.  Sundry  Formal  Averments. — An  act  done  by  an 
agent  should,  ordinarily,  be  alleged  as  the  act  of  the  prin- 
cipal. Qu{facitperalium,facitperse.  And  such  allegation 
is  proper  even  when  the  act  could  be  done  only  by  an  agent,* 
as  in  the  case  of  a  corporation.  But  the  statement  that  an 
act  was  done  through  an  agent  is  not  improper ;  ^  and  when 

1  Patterson  v.  Prior,  18  Ind.  440  ;  »  Ante,  221 ;  Pom.  Rem.  573, 
Tightmyer  v.  Mongold,  20  Kan.  580 ;  Gillett  v.  Freganza,  13  Wis. 
90 ;  Fauson  v.  Linsley,  20  Kan.  472 ;  Lowber  v.  Connit,  36  Wis. 
235  ;  Nat'l  Trust  Co.  v.  Gleason,  77  176  ;  Per  Welch,  C.  J.,  in  Corry 
N.  Y.  400;  N.  Y.  Guar.  Co.  v.  v.  Gaynor,  21  O.  S.  277;  O'Brien 
Gleason,  78  N.  Y.  503  ;  Powell  v.  v.  Fitzgerald,  143  N.  Y.  377. 
Reese,  7  A.  &  E.  426  ;  Hambly  v.  ■•  Hoosac  Min.  &  Mill.  Co.  v. 
Trott,  Cow.  372.  Donat,  10  Colo.  529  ;  Weide  v.  Por- 

2  Huffman  v.  Hughlett,  11  Lea,  ter,  22  Minn.  429  ;  Bumham  v. 
549 ;  Per  Nicholson,  C.  J.,  in  Milwaukee,  69  Wis.  379 ;  McNees 
Kirkman  v.  Philips,  7  Heisk.  222,  v.  Mo.  Pac.  Ry.  Co.,  22  Mo.  App. 
224.    Contra,  Edwards  v.  Albrecht,  224. 

42  Mo.  App.  502.  «  St.  John  v.  Griffith.  1  Abb.  Pr.  39. 

25 


§378  GENERAL  RULES  OF  STATEMENT.  386 

necessary,  to  fairly  advise  the  adversaiy,  a  party  may  be  re- 
quired to  designate  the  agent  or  officer.^ 

In  pleading  a  public  liighway,  it  is  sufficient  to  allege  that 
it  is  a  public  higliway,  without  showing  how  it  became  so.^ 
This  is  the  ultimate  operative  fact ;  and  besides,  the  fact^ 
creating  the  highway  are  as  well  known  to  the  defendant  as 
to  the  plaintiff,  and  are  evidential  in  their  nature.  But  one 
claiming  a  private  way  should  allege  title.^ 

In  pleading  a  fee  simple,  it  is  only  necessary  to  allege  that 
the  party  is  seized  in  fee,  or  is  the  owner  in  fee,  without  stat- 
ing when  or  how  the  estate  was  created.'*  Ownership  is  the 
ultimate  fact  to  be  alleged.^ 

In  pleading  a  private  statute,  it  must  be  specially  alleged 
and  set  forth,^  except  in  those  states  where  it  is  by  statute 
made  sufficient,  in  pleading  a  private  statute,  or  a  right  de- 
rived therefrom,  to  refer  to  such  statute  by  its  title  and  the 
day  of  its  passage.  But  to  bring  a  case  within  the  provisions 
of  a  public  statute, — except,  perhaps,  an  action  to  recover  a 
statutory  penalty, — it  is  only  necessary  to  allege  the  facts 
which  make  a  case  within  the  statute  ;  "^  though  where  a  stat- 
ute, upon  certain  conditions,  confers  a  right,  or  gives  a  remedy, 
unknown  to  the  common  law,  a  party  asserting  such  right, 
or  availing  himself  of  such  remedy,  must,  in  his  pleading, 
bring  himself  or  his  case  clearly  within  the  statute.^ 

In  pleading  a  foreign  statute,  so  much  thereof  as  is  relied 
upon  should  be  copied  into  the  pleading,^  so  as  to  put  it  in 

1  Webster  v.  Cont.  Ins.  Co.,  67  ^P.C.Sc  St.  L.  Ry.  Co.  v.  Moore, 
Iowa,  393.  33    O.    S.   384  ;    Turnpike    Co.  v. 

2  Aspindall  v.  Brown,  3  Dumf.  &  Sears,  7  Conn.  86  ;  Abb.  PI,  Br, 
East,  265  ;   Kerr  v.  Hays,  35  N.  Y.  348. 

336.  7  Shaw  v.  Tobias,  3  N.  Y.  188 

8  Per  Smith,  J. ,  in  Kerr  v.  Hays,  Reed  v.   Northfleld,   30  Mass.  94 

35  N.  Y.  336.  Brown  v.  Harmon,  21  Barb.  508 

<  Gould    PI.   iii.    22 ;    Knight  v.  Abb.  PL  Br.  340. 

McDonald,  37  Ind.  463  ;  Per  Riddle,  8  Kechler  v.  Stumme,  36  N.  Y. 

J.,  in  McMannus  v.  Smith,  53  Ind.  Superior  Ct.  337. 

211.  9  Swank  v.   Hufnagle,   111   Ind. 

6  Souter  V.  Maguire,  78  Cal.  543 ;  453  ;  Milligan  v.  State,  86  Ind.  553  ; 

Phoenix  Ins.  Co.  v.  Stark,  120  Ind.  Bank  of  Commerce  v.  Fuqua,  11 

444.  Mont.  285. 


387  MATTERS  OF  FORM.  §  378 

the  power  of  the  court  to  interpret  and  construe  the  statute. 
An  averment  that  a  certain  act  was  done  according  to  the 
laws  of  a  foreign  state  is  not  suflQcient.^  And  in  pleading  a 
city  ordinance,  it  must  be  set  forth  as  any  other  fact  of  which 
the  courts  do  not  take  judicial  notice  ;  a  mere  reference  to  it 
by  number,  title,  and  date  of  enactment  is  not  sufficient.^ 

1  Holmes  v.  Broughton,  10  Wend.        2  Potneroy  v.   Lappeus,  9  Oreg. 
75  ;  Bank  v.  Hendrickson,  40  N.  J.     363. 
jli,  52.     Contra,  Tank  Line  Co.  v. 
Corner,  148  111.  259. 


CHAPTER  XXIV. 

RULES  RELATING  TO  THE  PROOFS. 

/    379.  The  Proofs  are  Confined  to  the  Allegations. — 

/  One  object  of  the  pleadings  in  a  cause  is  to  disclose  the  re- 
J     spective  claims  of  the  parties,  and  the  resulting  issues.     The 
\    trial  is  to  ascertain  the  truth  in  respect  to  the  matters  put  in 
Vpontroversy  by  the  pleadings.     The  evidence  is  to  elucidate 
the  matters  of  fact  in  controversy,  and   must  be  confined 
thereto,  and  the  judgment  must  be  secundum  allegata  et  pro- 
bata}    Entire  agreement  of  proofs   and   allegations   is  not 
always  practicable,  or  even  necessary ;  and  the  degrees   of 
disagreement  are  distinguished  as  immaterial  variance,  ma- 
terial variance,  and  failure  of  proof.^     These  distinctions  re- 
late to  the  effect  of  evidence,  rather  than  to  its  relevancy, 
but  they  accentuate  the  importance  of  constructing  the  plead- 
ings with  reference  to  the  admission  of  proper  evidence,  and 
the  exclusion  of  improper  evidence. 

The  rules  of  pleading  that  affect  the  admission  and  exclusion 
of  evidence  mainly  relate  either  to  what  facts  may  be  proved 
under  a  denial,  or  to  what  facts  must  be  alleged  in  order  that 

1  There  is,  in  practice,  an  appar-  collateral  facts,  may  in  this  way 

ent  expansion  of  this  rule,  when  become  material  by  reason  of  the 

facts  not  in  issue,  but  relevant  to  state  of  the  evidence,  and  be  pro- 

the  issue,  or  explanatory  of  such  perly  the  subjects  of  proof.     But 

relevant  facts,  are  allowed  to  be  this  expansion  of  the  rule,  dictated 

proved,  and  when  evidence  is  intro-  and  regulated  by  necessity,  experi- 

duced  to  meet  other  evidence.     It  ence,  and  prudence,  affects  only  the 

frequently  happens  that  testimony  degree  in   which    probative   facts 

offered  during  the  trial  gives  im-  may  relate  to  the  issue ;    and  does 

portance  and  materiality  to  some  not    embrace  facts    that    do  not, 

fact  that  has    no  direct    bearing  directly  or  indirectly,  tend  to  eluci- 

upon  the  issue.     Questions  of  time,  date  the  questions  evolved  by  the 


place,   identity,   motive,    provoca-    pleadings. 
tion,  locality,  reputation,  and  other       *  Post,  520. 


388 


389  OF  THE  PROOFS.  §380 

they  may  be  proved ;  and  this  natural  division  will  be  ob- 
served in  the  further  consideration  of  the  subject. 

380.  Defensive  Facts,  Whether  Evidential  or  Opera- 
tive.— Whether  a  particular  defensive  fact  is  evidential,  and 
may  be  proved  under  a  denial,  or  whether  it  is  an  operative 
fact,  to  be  pleaded  as  new  matter  in  order  that  it  may  be 
proved,  is  a  question  that  involves  a  consideration  of  the 
nature  and  effect  of  the  defenses  of  denial  and  of  new  matter ; 
and  it  may  sometimes  depend  upon  the  form  and  scope  of  the 
complaint. 

A  denial,  whether  general  or  special,  simply  asserts  the 
untruth  of  the  allegations  to  which  it  is  addressed.  If  in  an 
answer,  it  casts  upon  the  plaintiff  the  burden  of  pioviiig  all 
the  material  allegations  denied,  and  entitles  the  defendant, 
after  the  introduction  of  evidence  by  the  plaintiff,  to  intro- 
duce evidence  to  disprove  the  facts  so  denied.  Such  evidence 
may  be  negative  or  affirmative  in  character,  but  it  must,  in  its 
effect,  tend  to  disprove  the  material  facts  denied.  Any 
affirmative  fact  that  is  inconsistent  with  the  facts  denied  may 
therefore  be  proved  under  such  denial,  because  the  proof  of 
the  one  is  the  disproof  of  the  other. 

A  defense  of  new  matter  is  the  statement  of  some  additional 
and  cognate  fact,  not  inconsistent  witli  the  facts  already 
alleged,  and  which,  without  antagonizing  those  facts,  shows 
they  do  not  operate  to  give  the  plaintiff  a  remedial  right 
against  the  defendant. 

Facts  that  are  not  inconsistent  with  the  plaintiff's  facts, 
and  that  will  not  tend  to  defeat  his  facts  alleged,  may  not  be 
proved  under  a  denial,  however  much  such  facts  might  tend 
to  defeat  the  plaintiff's  right  arising  from  his  facts  alleged ; 
and  facts  that  are  inconsistent  with  those  alleged  by  the 
plaintiff  can  not  be  pleaded  as  new  matter,  for  such  plea  does 
not  question  the  plaintiff's  facts  alleged^  but  only  the  appar- 
ent right  arising  from  them.  In  other  words,  a  defense  of 
denial  challenges  the  plaintiff's /acis  alleged,  while  a  defense 
of  new  matter  challenges  only  the  effect  of  those  facts. 

It  follows,  that  facts  which  are  defensive  because  incon- 
sistent with  the  plaintiff's  facts  alleged,  are  evidential  facts, 
and  may   be   proved  under   a  denial,  for  they  support  the 


§  381  GENERAL  RULES  OF  STATEMENT.  390 

denial ;  but  facts  that  are  consistent  with  those  alleged  by  the 
plaintiff,  and  that  are  defensive  because,  when  considered  in 
connection  with  the  plaintiff's  facts,  they  show  that  he  has 
not  the  right  that  would  arise  from  the  facts  by  him  alleged, 
are  operative  facts,  and  must  be  pleaded  before  they  can  be 
proved.  If  a  defensive  fact,  and  those  alleged  by  the  adver- 
sary, may  co-exist,  the  former  is  an  operative  fact,  and  must 
be  pleaded ;  if  they  can  not  co-exist,  the  defensive  fact  may 
be  proved  under  a  denial — it  is  a  mere  negation.  Stated  in 
other  form,  the  plaintiff  does  not  allege  the  defendant's  lia- 
bility, but  facts  which  show  his  liability;  and  the  defendant 
may  predicate  his  non-liability  upon  the  falsity  of  the  plaint- 
iff's facts,  or  upon  new  facts  which  admit  the  plaintiff's  facts 
and  avoid  the  liability.  If  a  given  defensive  fact  will  show 
the  falsity  of  the  plaintiffs  facts,  it  is  an  evidential  fact,  to 
be  proved  under  a  denial ;  but  if  it  will  show  non-liability 
notwithstanding  the  plaintiff's  facts,  it  is  an  operative  fact, 
that  must  be  pleaded  in  order  to  be  available. 

I.   WHAT  MAY  BE  PROVED  UNDER  A  DENIAL. 

381.  The  Issues  Under  a  Denial. — A  special  denial  puts 
in  issue  the  particular  averment  or  averments  traversed,  and 
a  general  denial  puts  in  issue  all  the  issuable  averments  of 
the  complaint;  that  is,  all  averments  that  are  essential  to  the 
maintenance  of  the  plaintiff's  action.  These  are  all  that  the 
plaintiff  must  prove,  and  they  are  all  that  the  defendant  may 
controvert.^  Under  such  denial,  the  defendant  may  intro- 
duce evidence  (1)  to  controvert  the  plaintiff's  evidence,  (2) 
to  disprove  his  facts  alleged,  or  (3)  to  prove  other  and  in- 
consistent facts.2  Such  evidence  tends  to  overthrow  the 
plaintiff's /acfs  alleged,  and  not  simply  to  destroy  their  effect. 
Under  the  general  issue  at  common  law,  much  latitude  was 
formerly  given,  and  the  defendant  was  allowed  to  prove  any 

1  BUss  PL  327-329,  352  ;  Max.  PI.  »  Boone   PI.    65  ;    Bliss  PI.    352  ; 

392  ;    Pom.   Rem.    642,   667,    668  ;  Pom.  Rem.  671  ;  Milbank  v.  Jones, 

Adams  Exp.  Co.  v.  Darnell,  31  Ind.  141  N.  Y.  340  ;  Roemer  v.  Striker, 

20  ;  A.  &.  N.  Ry.  Co.  v.  Washburn,  142  N.  Y.  134. 
5  Neb.  124. 


391  OF  THE  PROOFS.  §  382 

facts  tending  to  show  that  plaintiff  liad  no  right  of  action  at 
the  commencement  of  the  suit ;  and  facts  constituting  a  de- 
fense of  new  matter  were  frequently  allowed  to  be  proved 
under  this  scope  given  to  the  general  issue.^  This  wide 
range  of  evidence  under  the  general  issue  led  to  constant 
surprises  at  the  trial,  and  the  evil  was  finally  remedied  in 
England  by  statute,  and  by  rules  of  court  made  thereunder. 

Uncertainty  in  the  mind  of  the  pleader  as  to  the  issues 
made  by  a  general  denial,  and  as  to  what  may  be  proved 
thereunder,  and  failure  to  distinguish  defensive  evidential 
facts  from  defensive  operative  facts,  have  led  to  the  repre- 
hensible practice  of  combining  with  the  general  denial  a 
statement  of  evidential  facts  equivalent  to  the  denial — facts 
that  could  all  be  proved  under  the  denial.  The  superaddi- 
tion  of  such  facts  does  not  affect  the  issue,  or  shift  the  bur- 
den of  proof,  or  have  any  bearing  upon  the  admissibility  of 
evidence. 

382.  Denial  of  Ownership. — It  has  been  shown,  that 
when  the  plaintiff  asserts  a  claim  by  virtue  of  his  ownership 
of  property,  he  must  allege  title  thereto  ;  and  in  some  cases 
he  may  allege  his  ownership  generally,  while  in  others  he 
must  state  the  facts  showing  such  ownership.^  Where  the 
plaintiff's  allegation  of  ownership  is  general,  not  stating  the 
facts  creating  title,  a  denial  will  admit  any  competent  evi- 
dence tending  to  disprove  plaintiff's  averment  of  ownership ; 
such  as  fraud,3  ownership  of  the  defendant,^  or  of  a  third  per- 
son.5     And  in  such  case,  an  allegation  by  the  defendant  that 

iSteph.   PI.    229-240  ;    Bliss    PI.  Barb.  468  ;  Avory  v.  Mead,  12  N.  Y. 

324 ;  Pom.   Rem.    645-656 ;    Gould  St.  Rep.  749  ;  Mather  v.   Hutchin- 

Pl.  vi.  38^8.-  son,  25  Wis.  27  ;  Lain  v.  Shepard- 

» Ante,  323  et  seq.  son,  23  Wis.  224,  228.     Cf.  Miles  v. 

3  Bailey  v.  Swain,  45  O.  S.  657  ;  Lingerman,  24  Ind.  385. 
Eureka  I.  &  S.  Wks.  v.  Bresnahan,        ^Marshall  v.  Shafter,  32  Cal.  176  ; 

66  Mich.  489  ;  s.  c.  33  N.  W.  Rep.  Bruck  v.  Tucker,  42  Cal.  346  ;  Foye 

834;  Stern  A.  &  C.  Co.  v.  Mason,  v.  Patch,  132  Mass.  105;  Stanbach 

16  Mo.  App.  473  ;  Young  v.  Glas-  v.  Rexford,  2  Mont.  565  ;  Per  Dow- 

cock,  79  Mo.  574;  Johnson  v.  Os-  ney,  J.,  in  Kennedy  v.   Shaw,  38 

wald,   38    Minn.    550  ;    Merrill    v.  Ind.  474. 

Wedgwood,  25  Neb.  283  ;  s.  c.  41        ^Schulenberg  v.    Harriman,    21 

N.  W.  Rep.  149  ;  Wager  v.  Ide,  14  Wall.    44,    59  ;    Driscoll    v.    Dun- 


§  383  GENERAL  RULES  OF  STATEMENT.  392 

the  property  belongs  to  a  third  person  would  not  be  new 
matter,  but  the  statement  of  an  evidential  fact  equivalent  to 
a  denial  of  plaintiff's  ownership.^  But  where  the  plaintiff 
states  the  facts  upon  which  his  ownership  depends,  a  general 
denial,  since  it  denies  only  these  facts,  will  not  admit  evi- 
dence to  disprove  ownership  otherwise  than  by  controverting 
the  particular  facts  alleged. ^ 

In  actions  for  the  recovery  of  real  property,  in  jurisdictions 
where  there  is  no  statutory  requirement  to  the  contrary,  a 
title  acquired  by  adverse  possession  for  the  period  fixed  by 
the  statute  of  limitations  may  be  proved  under  a  denial  of 
plaintiff's  title.  The  reason  for  this  rule  is,  that  such  con- 
tinued possession  under  the  statute  gives  the  adverse  occu- 
pant an  absolute  title,  and  proof  thereof  negatives  the  plaint- 
iff's allegations  as  completely  as  would  the  introduction  of  a 
conveyance  from  the  plaintiff  to  the  defendant.^  This  is  an 
apparent  exception  to  the  general  rule  that  the  statute  of 
limitations  must  be  pleaded  in  order  to  be  available  as  a  de- 
fense. But  it  is  more  apparent  than  real.  It  is  not  the 
statute  that  is  relied  on,  but  the  matured  fruit  of  the  statute 
— ownership  of  the  property.  The  lapse  of  time  defeats  the 
title,  not  merely  the  remedy ;  and  is  asserted  in  denial  of 
ownership,  not  in  confession  and  avoidance. 

383.  Proof  under  Denials — Illustrative  Cases. — In  an 
action  for  goods  sold  and  delivered,  the  defendant  may,  under 
a  denial,  show  that  the  goods  were  sold  and  delivered  to  his 
wife,  who  had  no  authority  to  act  for  him ;  *  or   that   the 

woody,  7  Mont.  394  ;  s.  c.  16  Pac.  2  ^bb.  PI.  Br.  942  ;  Per  Gilptllan, 

Rep.  726;  Griffin  v.  L.  I.  Ry.  Co.,  C.   J.,   in  Johnson  v.   Oswald,  38 

101  N.  Y.  348.  Minn.  550,  552. 

'  Per  Croker,  J. ,  in  Woodworth  ^^ng.    on    Lim.     380,    note    1; 

V.  Knowlton,  22  Cal.  164,  169.  Cf.  School    Dist.   v.    Benson,   31   Me. 

Sparks  v.    Heritage,   45  Ind.    66 ;  384 ;    Kyser  v.    Cannon,   29  O.  S. 

Davis  V.   Warfield,   38  Ind.    461  ;  359 ;  Rhodes    v.   Gunn,    35    O.    S. 

Thompson  v.  Sweetser,  43  Ind.  312  ;  387  ;  Nelson  v.   Brodhack,  44  Mo. 

Pulliam  V.  Burlingame,  8IM0.  Ill  ;  596;    Bledsoe    v.    Sirams,    53  Mo. 

Jones  V.  Rahilly,  16  Minn.  320,  325.  305.  307. 

Contra,  Dyson  v.  Ream,  9  Iowa,  *Day  v.    Wamsley,  33  Ind.  145. 

51  ;  Patterson  v.    Clark,  20  Iowa,  Cf.   Hier  v.  Grant,  47  N.  Y.  278, 

429.  where  defendant  was  allowed,  after 


393  OF  THE  PROOFS.  §  383 

person  who  made  the  sale  was  himself  the  owner  of  the  goods 
and  not  agent  for  the  plaintiff,  for  this  contradicts  the  alle- 
gation of  a  sale  by  the  plaintiff.^  In  an  action  on  a  written 
contract  to  which  certain  incidents  are  attached  by  custom, 
the  custom  need  not  be  pleaded  ;  ^  and  under  denial  of  a  con- 
tract, a  custom  or  general  course  of  business  incident  to  the 
contract  may  be  proved.^  Parol  proof  of  the  custom  does 
not  contradict  or  vary  the  real  contract,  for  by  implication 
the  usage  is  annexed  to  the  writing.*  Under  a  denial,  the 
defendant  may  not  show  that  the  plaintiff  is  not  the  real 
party  in  interest,  and  therefore  not  entitled  to  sue.  The 
facts  showing  want  of  right  to  sue  are  new  matter,  to  be 
pleaded.^  In  an  action  upon  a  quantum  meruit  for  work 
and  labor,  a  denial  puts  in  issue  the  value  of  the  work,  and 
the  defendant  may  prove  any  facts  tending  to  show  its  value 
— such  as  negligence,  or  unskillfulness.^ 

"  The  whole  question  there  is,  how  much  ought  the  plaint- 
iff to  have ;  and  proof  of  defects  in  his  work  is  a  direct 
answer  to  the  question."  '     Under  a  denial  in  such  action  the 

plaintiff  had  shown  a  sale  to  defend-  Smith  v.  Hall,  67  N.  Y.  48  ;  Hereth 
ant's  agent,  to  prove  a  prior  revo-  v.  Smith,  33  Ind.  514  ;  Brett  v. 
cation  of  the  agency,  with  plaint-  Univ,  Soc.  63  Barb.  610.  Contra, 
ifTs  knowledge.  But  this  was  di-  Wetmore  v.  San  Francisco,  44  Cal. 
rectly  meeting  the  plaintiff's  evi-  294.  It  would  seem,  upon  princi- 
dence,  and  only  indirectly  contro-  pie,  that  when  the  right  to  sue  is 
verting  his  allegations.  Ante,  379,  denied  by  reason  of  some  fact  con- 
note, sistent  with  those  alleged  by  the 

^  Hawkins  v.    Borland,   14  Cal.  plaintiff — as  that  he  had  assigned 

413 :  Ferguson  v.  Ramsey,  41  Ind.  the  claim,    such    fact    should    be 

511,  513.  pleaded  ;  but  that  a  defensive  fact 

2 Lowe  V.  Lehman,  15  0.  S.  179;  inconsistent  with  those  stated  by 
Templeman  v.  Riddle,  1  Harr.  522  ;  the  plaintiff — as,  that  he  never 
Stultz  v.  Dickey,  5  Binn.  285.  Cf.  owned  the  claim,  should  be  ad- 
Goldsmith  V.  Sawyer,  46  Cal.  209.  mitted  under  a  denial. 

3 Miller  v.  Ins.  Co.  of  N.  A.,  1  ^Raymond  v.  Richardson,  4 E.  D. 

Abb.  N.  C.  470.  Smith,    171,    as    to    services    of  a 

*  Lowe  V.  Lehman,  15  O.  S.  179.  mechanic.     Cf.  Bridges  v.    Paige, 

Cf.  Anson  on  Contr.  248  :  Reynolds  13  Cal.    640,   as  to  services  of  an 

on  Ev.  70  ;  2  Par.  on  Contr.  543 ;  attorney. 

Lawson  on  Usages,  112.  ''Per  Warden,  J.,  in  "Wellsville 

=•  Shafer  v.  Bronenberg,  42  Ind.  v.  Geisse,  3  O.  S.  333,  340. 
89,  90  ;  Cottle  v.  Cole,  20  Iowa,  481 ; 


§  384  GENERAL  RULES  OF  STATEMENT.  394 

defendant  may,  it  is  said,  prove  a  special  agreement  as  to 
compensation,  or  tliat  the  services  were  rendered  gratui- 
tously.^ 

In  an  action  to  recover  possession  of  chattels,  the  com- 
plaint alleging  property  in  plaintiff,  and  the  answer  being  a 
general  denial,  the  trial  court  excluded  evidence  offered  by 
defendant  to  show  tliat  plaintiff  was  not  the  owner.  The 
reviewing  court  held  the  evidence  admissible,  because  the 
allegation  of  ownership  was  denied,  and  this  evidence  would 
support  the  donial.^  To  a  complaint  on  a  judgment  recovered 
in  another  state,  the  defendant  pleaded  (1)  a  general  denial, 
(2)  nul  tiel  record.  The  second  defense  was  stricken  out 
on  motion,  because  it  was  embraced  within  the  first,  and 
could  be  proved  under  it.^ 

It  will  be  seen  from  the  foregoing,  that  the  office  of  the 
general  denial,  so  far  as  it  affects  the  proofs,  is  twofold :  (1)  it 
casts  upon  the  plaintiff  the  burden  of  proving  all  the  material 
facts  constituting  his  cause  of  action  ;  and  (2)  it  authorizes 
the  defendant  to  disprove  those  averments,  and  to  controvert 
the  plaintiff's  evidence ;  and  this  he  may  do  by  negative 
testimony,  or  by  proof  of  evidential  facts  inconsistent  with 
the  plaintiff's  facts  alleged. 

n.  DEFENSIVE  FACTS  THAT  MUST  BE  ALLEGED  IN  ORDER 
TO  BE  PROVED. 

384.  The  Defense  of  New  Matter. — The  defense  of  new- 
matter  does  not  controvert,  either  in  terms  or  in  effect,  the 
facts  stated  by  the  plaintiff.  It  states  other  facts  consistent 
with  the  plaintiff's  facts,  but  which  operate  to  defeat  the 
plaintiff's  right  arising  from  his  facts  alone.  Such  defense 
proceeds  upon  the  admission,  express  or  tacit,  that  the  is- 
suable facts  stated  in  the  complaint  are  true  ;  it  controverts 
no  facts,  makes  no  issue,  and  it   calls  for  a  reply.     A  fact 

1  Schermerhom  v.  Van  Allen,  18  answering  the  allegation  in  the 
Barb.  29.  plaintiffs  petition,    can   try    only 

2  Caldwell  v.  Briggerman,  4  Minn,  such  questions  of  fact  as  are  neces- 
190  ;  Northrup  v.  Miss.  Valley  Ins.  sary  to  sustain  the  plaintiff's  case." 
Co.,  47  Mo.  435,  444,  per  Wagner,  »  Westcott  v.  Brown,  13  Ind.  83. 
J.:    "The  defendant,    by  merely 


395  OF  THE  PROOFS.  g  385 

that  is  inconsistent  with  those  stated  in  the  complaint,  may, 
if  competent  and  relevant,  be  proved  in  support  of  a  denial, 
but  it  should  not  be  pleaded ;  and  if  pleaded,  it  is  not  a 
defense  of  new  matter,  and  does  not  call  for  a  reply. 

In  an  action  on  an  attachment  bond,  wherein  the  petition  set 
out  the  bond,  and  alleged  as  a  breach  thereof  that  the  defend- 
ant had  failed  to  prosecute  his  attaclmient  suit,  and  that 
the  attachment  had  been  abated  by  judgment,  the  defendant 
answered  denying  the  breach,  and  alleging  that  the  attach- 
ment suit  was  still  pending  by  motion  in  arrest  of  judgment 
and  for  a  new  trial.  It  was  held,  that  the  allegation  of  the 
pendency  of  the  attachment  suit  was,  in  effect,  a  mere  nega- 
tion of  the  plaintiff's  averment  of  breach  of  the  bond,  that  it 
could  be  proved  under  the  denial  contained  in  the  answer, 
that  it  did  not  give  color,  and  was  not  new  matter  calling  for 
a  reply .1  The  statement  of  a  different  version  of  the  trans- 
action is  not  a  defense  of  new  matter,  because  it  does  not 
admit  the  plaintiff's  facts,  and  therefore  does  not  "  give 
color."  2  Facts  so  stated  are  not  admitted  by  failure  to  reply, 
and  they  do  not  change  the  burden  of  proof. 

The  statement  of  evidential  facts  inconsistent  with  those 
stated  in  the  complaint,  and  a  statement  of  a  different  version 
of  the  transaction,  contradictory  of  the  plaintiff's  facts,  since 
they  show,  arguendo,  that  the  plaintiff's  statements  are  un- 
true, have  generally  been  treated  as  the  equivalent  of  a  denial, 
and  held  good  on  demurrer.^  But  such  pleading  of  evidential 
facts  is  a  flagrant  violation  of  elementary  principles,  and  ought 
not  to  be  tolerated.^ 

385.  Defenses  to  be  Alleged— Illustrative  Cases. — 
Under  the  foregoing  rule  that  defensive  facts  consistent  with 

estate  V.  Williams,  48  Mo.  210.  Co.  v.  Walker,  45  O.  S.  577;  Ho- 

*  Simmons   v.    Green,    35   O.    S.  mire  v.   Rodgers,   74  Iowa,    395; 

104.  Hostetter  V.   Auman,  119   Ind.    7; 

8  Pom.  Rem.   624,  627  ;  Clink  v.  Hopkinson  v.  Sholton,  37  Ala.  306. 

Thurston,   47    Cal.    21,  29 ;  Judah  Contra,  McDonald   v.  Flour  Mills 

V.    University,   etc.,   23    Ind.    272,  Co..  31  Fed.  Rep.  577.  579. 

277;   Van    Alstyne     v.     Norton,  1  *Ante.   269,   where  the  evils  of 

Hun,   537.    Cf.  Waggoner  v.   Lis-  such  practice  are  pointed  out. 
ton,   37  Ind.    357  ;  B.  &   O.    Ry. 


g  385  GENERAL  RULES  OF  STATEMENT.  396 

the  issuable  facts  in  the  complaint  are  new  matter,  and  must 
be  alleged,  in  order  that  they  may  be  proved,  it  is  held,  that 
facts  in  justification  must  always  be  pleaded.  This  is  plainly 
requisite,  for  a  defense  of  justification  in  no  wise  controverts 
the  facts  alleged  by  the  i)laintiff,  but  excuses  or  relieves  the 
defendant  from  liability  on  account  thereof.  In  actions  for 
defamation  of  reputation,  if  the  truth  of  the  words  spoken  or 
written  be  relied  on  in  justification,  it  must  be  pleaded.  And 
this  is  so,  where  the  plaintiff  has  alleged  the  falsity  of  the 
words ;  for  such  negative  allegation  can  be  traversed  only  by 
an  affirmative.^  It  is  true,  that  a  general  denial,  and  a  plea 
in  justification,  would  each  show  that  the  plaintiff  never  had 
a  right  of  action  ;  but  the  one  shows  this  by  controverting 
the  plaintiff's  facts,  while  the  other  shows  it  by  admitting 
these,  and  bringing  upon  the  record  other  and  correlated 
facts  to  obviate  their  effect. 

As  to  whether  facts  in  mitigation  of  damages  should  be 
pleaded,  the  authorities  are  not  agreed.  It  was  formerly  the 
rule,  at  common  law  that  the  defense,  whether  by  denial  or 
by  avoidance,  should  answer  the  whole  declaration ;  and  a 
partial  defense  was  not  allowed  or  recognized.^  Under  this 
rigid  requirement,  which  was  in  later  time  relaxed,  a  defend- 
ant  could  avail  himself  of  facts  in  mitigation,  only  by  plead- 
ing the  general  issue,  or  a  special  plea  answering  the  whole 
complaint ;  and  under  this  full  defense,  mitigating  facts  were 
admitted  in  evidence.  In  this  country,  some  courts,  adher- 
ing to  the  common-law  rule,  have  held  that  mitigating  cir- 
cumstances are  not  to  be  pleaded,  but  may  be  proved  under 
the  general  denial.^  But  the  weight  of  authority,  as  well  as 
the  spirit  and  theory  of  the  new  procedure,  which  authorizes 

1  Wachter  v.  Quenzer,  29  N.  Y.  157,  158  ;  Harter  v.  Crill,  33  Barb, 
547 ;  Fry  v.  Bennett,  5  Sandf.  54  ;  283 ;  Muser  v.  Lewis,  14  Abb.  N. 
Jarnigan  v.  Fleming,  43  Miss.  710.  C.  333  ;  Dunlap  v.  Snyder,  17  Barb. 
These  cases  hold  tlie  allegation  of  561  ;  Button  v.  McCauley,  5  Abb. 
falsity  to  be  needless,  and  not  tra-  Pr.  N.  S.  29 ;  Travis  v.  Barger,  24 
versable.     Ante,  330,  and  note.  Barb.  614  ;  Jarnigan  v.    Fleming, 

2  Ante,  75.  43  Miss.  710;  Haywood  v.  Foster, 
'Smith  V.   Lisher,    23  Ind.   500,     16  Ohio,  88 ;  Duval  v.  Davey,  32  O. 

502 ;  Allison  v.  Nanson,  41  Ind.  154,     S.  604. 

) 


397  OF  THE  PROOFS.  §  385 

the  pleading  of  partial  defenses,^  is  to  the  effect  that  facts  i:\ 
mitigation  should  be  pleaded.^  It  ought  here  to  be  stated,  how- 
ever, that  the  requirement  to  plead  facts  in  mitigation  should 
obtain  only  when  such  facts  are  essentially  new  matter.  It 
does  not  exclude  proof  of  mitigating  facts  to  meet  and  modify 
the  evidential /ac^s  offered  by  the  other  side.  In  actions  for 
libel  or  slander,  the  codes  in  some  states  authorize  the  proof 
of  mitigating  circumstances  without  special  plea. 

Where  a  defendant  admits  the  facts  of  the  transaction 
stated  by  the  plaintiff,  but  insists  that  the  same  is  illegal  and 
void  by  reason  of  some  fact  not  stated  by  the  plaintiff,  his 
defense  is  new  matter,  and  must  be  pleaded.  In  an  action 
against  a  city,  on  a  contract  made  with  certain  officers  of  the 
municipality,  the  defensive  fact  that  in  the  making  of  the 
contract  the  officers  did  not  proceed  according  to  the  statute 
conferring  the  power  and  prescribing  the  way  in  which  it 
shall  be  exercised,  is  new  matter,  and  must  be  pleaded,  in 
order  that  it  may  be  proved.^  In  an  action  on  a  contract  of 
sale,  the  defensive  fact  that  it  was  entered  into  on  Sunday, 
in  violation  of  a  statute  that  makes  it  void,  is  new  matter  to 
be  pleaded.*     So,  the  defensive  fact  that  the  demand  is  for 

1  Ante,  233,  find  the  court  held  that  by  failure 

2  McKyring  v.  Bull,  16  N.  Y.  to  reply  the  new  matter  in  defense 
297  ;  Foland  v.  Johnson,    16  Abb.     was  admitted  to  be  true. 

Pr.  235,239;  Beckett  v.  Lawrence,  *Finley  v.  Quirk,  9  Minn.  179. 
?  Abb.  Pr.  N.  S.  403,  405 ;  Bradner  The  answer  was  a  denial,  and  the 
V.  Faulkner,  93  N.  Y.  515  ;  United  defendant  offered  to  prove  that  the 
States  V.  Ordway,  30  Fed.  Rep.  30  ;  contract  was  entered  into  on  Sun- 
Renan  v.  Williams,  41  Iowa,  680.  day.  The  court,  per  Wn.S0N,  C.  J. , 
8  Nash  V.  St.  Paul,  11  Minn.  110,  says  :  «'  We  hold,  therefore,  (1)  that 
113.  "It  maybe  laid  down  as  a  an  answer  merely  by  way  of  denial 
general  rule  of  pleading,  that  a  de-  raises  an  issue  only  on  the  facts 
fendant  who  admits  the  facts  al-  alleged  in  the  complaint ;  (2)  that 
leged,  but  wishes  to  avoid  their  the  denial  of  the  sale  in  this  case 
effect,  should  affirmatively  set  up  only  raised  an  issue  on  the  sale  in 
the  special  matters  on  which  he  point  of  fact,  and  not  on  the  ques* 
relies  as  an  avoidance.  In  this  case  tion  of  the  legality  of  such  sale ; 
the  answer  admits  a  contract  in  (3)  that  all  matters  in  confession 
fact  with  the  plaintiff,  but  denies  and  avoidance  showing  the  con- 
its  legal  validity,  and  sets  up  the  tract  sued  upon  to  be  either  void  or 
matters  which  show  it  void."  Per  voidable  must  be  affirmatively 
Wn^ON,  C.  J.    Tliere  was  no  reply,  pleaded." 


§  386  GENERAL  RULES  OF  STATEMENT.  39$ 

liquors  sold  contrary  to  law,^  or  that  the  contract  sued  on  is 
in  restraint  of  trade,^  is  a  defense  of  new  matter  and  should 
be  pleaded. 

386.  Defenses  to  he  Alleged — Illustrative  Cases,  Con- 
tinued.— Want  of  consideration  is  a  defensive  fact  that  may 
be  available  under  a  general  denial,  or  by  special  plea,  accord- 
ing to  the  averments  of  the  complaint.  In  an  action  on  a 
contract  or  an  instrument  that  imports  a  consideration,  the 
plaintiff  need  not  allege  consideration,  and  the  defendant  must 
plead  the  want  of  it,  to  admit  proof  of  the  fact ;  but  where 
the  plaintiff  must  and  does  allege  a  consideration,  a  denial  puts 
it  in  issue,  and  admits  the  proof.  Failure  of  consideration 
is  a  defensive  fact  consistent  with  both  the  presumption  of 
consideration  and  the  allegation  thereof,  and  when  relied  on 
as  a  defense,  must  be  pleaded. ^ 

All  matters  in  abatement  of  the  action,  such  as  misnomer, 
present  want  of  capacity  to  sue,  defect  of  parties,  pendency 
of  another  action,  if  they  do  not  appear  in  the  complaint, 
must  be  pleaded,  in  order  to  be  available  ;  they  can  not  be 
proved  under  a  denial.*  And  the  defense  that  the  action 
was  commenced  before  a  right  of  action  had  accrued  on  the 
demand  sued  on  must  be  pleaded ;  it  can  not  be  proved  under 
a  denial.^ 

Upon  principle,  and  by  the  decided  weight  of  authority, 
an  estoppel  in  pais,  when  relied  on  as  a  defense,  must  be 
pleaded,  if  there  is  opportunity  to  plead  it,  and  can  not  be 
given  in  evidence  under  a  denial.^     If  there  has  not  been 

iDenten  v.  Logan,  3  Met.  (Ky.)  may  show    an   unexpired    credit. 

434.  The  case  is  inherently  weak,  it  vio- 

^  Prost  V.  More,  40  Cal.  347.  lates  general  principles,  and  is  of 

8  See  ante,  328,  and  cases  cited.  no  authority. 

*Pom.  Rem.  698,  711,  and  cases  «Wood  v.  Ostram,  29  Ind.  177; 

cited.             ,  Johnson  v.  Stelwagen,  67  Mich.  10, 

^Hagan  v.  Burch,  8  Iowa,  309  ;  14  ;  Hanson  v.  Chiatovich,  13  Nev. 

Smith  V.    Holmes.    19  N.  Y.    271.  395  ;  Rugh  v.  Ottenheimer,  6  Oreg. 

Contra,    Landis  v.    Morrissey,    69  231  ;    Gill  v.    Rice,    13    Wis.    549 ; 

Cal.   83  ;    s.   c.    22  Reporter,   263.  Clarke  v.  Huber,  25  Cal.  593 ;  Dale 

This  case  holds  that  under  the  gen-  v.  Turner,  34  Mich.   405  ;  Bray  v. 

eral  denial  in  an  action  for  goods  Marshall,   75  Mo.  327 ;  Warder  v. 

Bold  and  delivered,  the  defendant  Baldwin,  51  Wis.  450  :  Burlington, 


399  OF  THE  PROOFS.  g  386 

opportunity  to  plead  the  estoppel,  it  may  be  proved  without 
having  been  pleaded.  There  may  be  such  want  of  opportun- 
ity where  the  estoppel  is  in  bar  of  new  matter  set  np  in  a 
reply,  or  in  an  answer,  where  no  repl}'  is  allowed,  and  where 
it  is  to  meet  some  fact  introduced  in  evidence,  but  not 
pleaded.^ 

An  equitable  defense  to  a  legal  demand  is  always  new 
matter,  and  must  be  pleaded,  in  order  that  it  may  be  proved.^ 
And  a  tender  of  payment  or  of  performance,  whether  a  full 
defense  or  only  partial,  can  not  be  shown  under  a  denial,  but 
must  be  pleaded,^  and  pleaded  with  certainty  ;  and  where 
tender  of  payment  is  relied  upon,  the  plea  must  show  not 
only  the  proffer  of  the  money,  but  that  the  tender  has  been 
maintained.  A  tender  does  not  bar  the  debt ;  it  stops  in- 
terest, and  prevents  judgment  for  costs. 

The  rules  for  determining  when  the  defense  of  non-com- 
pliance with  the  statute  of  frauds,  the  defense  of  the  statute 
of  limitations,  and  the  defense  of  payment  must  be  pleaded  in 
order  to  be  available,  have  heretofore  been  stated  ;  and  the 
rules  for  determining  when  facts  showing  special  damages 
must  be  alleged,  will  be  hereafter  stated.  In  an  action  on  a 
written  contract,  by  the  terms  of  which  the  defendant's 
liability  appears,  but  the  part  that  shows  his  liability  was 
inserted  b}^  fraud  or  mistake,  or  the  part  of  the  real  contract 
that  would  exonerate  him  was  omitted  by  like  fraud  or  mis- 
take, the  defendent's  defense  is  dependent,  not  for  its  assertion, 
but  for  its  proof,  upon  affirmative  equitable  relief  reforming 
the  contract.  To  admit  proof  of  the  fraud  or  mistake  in 
such  case,  the  defendant  must  impugn  the  writing,  by  alleg- 
ing the  error  and  asking  its  correction.  The  fraud  or  mistake 
could  not  be  proved  under  a  mere  denial. 

etc.,  Ry.  Co.  v.  Harris,  8  Neb.  140;  43  Wis.  108;  Isaacs    v.    Clark,  12 

Davis  V.  Davis,  26  Cal.  23  ;  Etche-  Vt.    692  ;    Perkins  v.    Walker,  19 

borne    v,   Ayzerais,   45  Cal.    121  ;  Vt.    144 ;     Shelton    v.    Alcox,    11 

Remillard  v.  Prescott,  8  Oreg.  37.  Conn.  240. 

Contra,  Caldwell  v.  Auger,  4  Minn.  2  Ante,  239. 

156.  8  Bliss    PI.    364;    Max.   PI.    517; 

1  Dyer    v.   Scalmanini,    69    Cal.  Helger  v.  Addy,  53  Cal.  597  ;  Siden- 

637;    Gans   v.  St.  Paul   Ins.  Co.,  berg  v.  Ely,  90  N.  Y.  257,  266. 


g  386  GENERAL  RULES  OF  STATEMENT.  40(> 

Uncertainty  in  the  mind  of  the  pleader  as  to  what  defensive 
facts  may  be  proved  under  a  denial,  and  what  must  be 
pleaded  in  order  to  be  proved,  has  led  to  the  common  fault 
of  superadding  to  the  general  denial  a  defense  in  the  form 
of  a  defense  of  new  matter,  but  containing  only  evidential 
facts  equivalent  to  a  denial,  and  all  of  which  could  be 
proved  under  the  defense  of  denial ;  and  sometimes  the 
defensive  evidential  facts  and  the  denial  are  commingled  in 
one  defense.  Such  practice  is  not  only  a  violation  of  the 
plainest  principles  of  pleading ;  it  leads  to  the  greatest  un- 
certainty and  confusion,  and  is  in  the  highest  degree  repre- 
hensible. 


PART  V. 

APPLICATION  OF  PRINCIPLES. 

387.  Scope  and  Divisions  of  this  Part. — The  ultimate 
end  of  procedure,  speaking  comprehensively,  is  the  conser- 
vation of  rights  ;  its  immediate  purjjose,  speaking  discrimin- 
ately,  is  the  application  of  substantive  law  to  operative  facts. 
Having  set  forth  and  explained  the  formal  pleadings,  and 
the  general  rules  by  which  they  are  to  be  constructed  and 
adapted  in  the  conduct  of  procedure,  it  is  proposed  now  to 
furnish  some  practical  guidance  for  the  application  of  the 
general  principles  of  pleading  to  particular  instances  of  actual 
or  threatened  violence  to  private  rights.  This  is  the  ultimate 
object  toward  which  all  that  precedes  has  tended,  and  to 
which  it  is  designed  to  be  subservient.  It  is  at  this  decisive 
juncture — the  application  of  legal  principles  to  the  actual 
affairs  of  life — that  the  lawyer  meets  his  greatest  difficulty  ; 
and  it  is  by  judicious  discrimination  at  this  critical  point 
that  the  careful  lawyer  lays  the  foundation  for  his  ultimate 
triumph. 

When  we  come  to  apply  the  substantive  law  to  an  actual 
combination  of  circumstances,  through  the  intervention  of  a 
court,  at  the  suit  of  one  party  against  another,  a  series  of 
progressive  steps  are  to  be  taken,  and  some  questions  of 
practical  importance  and  of  serious  consequence  must,  at  the 
outset,  be  considered  and  determined.  These  preliminary 
considerations  involve  inquiries  (1)  as  to  whether  there  is  a 
right  of  action,  (2)  as  to  what  persons  should  be  parties  to 
the  action,  (3)  as  to  the  court  that  may  properly  take  cogni- 
zance thereof,  and  (4)  as  to  the  substantive  law  that  must  be 
applied  to  the  facts  in  the  case. 

26  401 


CHAPTER   XXV. 

DISCOVERING  A  RIGHT  OF  ACTION. 
I.  ACTIONS   FOUNDED   ON   RIGHTS    AND   DELICTS. 

388.  Composition  of  Remedial  Rights. — An  action  is  a 
proceeding  in  a  court  of  justice  to  procure  its  interposition 
to  protect  a  right,  or  to  obtain  a  remedy  for  its  invasion. 
Primary  rights  are  either  in  rem,  or  in  personam  ;  the  former 
availing  against  persons  generally,  the  latter  availing  against 
some  determinate  person  or  persons.  A  remedial  right,  or 
right  of  action,  arises  from  an  infringement,  actual  or  threat- 
ened, of  a  primary  right,  and  is  always,  and  necessarily,  a  right 
against  a  determinate  person ;  to  wit,  the  person  who  owes 
the  positive  duty  imposed  by  a  right  in  personam,  or  one  who 
has  violated,  or  threatens  to  violate,  the  negative  duty  im- 
posed by  a  right  in  rem.  Therefore,  to  determine  whether  a 
person  has  a  right  of  action,  and  if  so,  against  whom,  we 
must  determine  whether  a  primary  right  of  such  person  has 
been  violated  or  threatened  by  the  actionable  wrong  of  some 
other  person  or  persons. 

Private  rights,  from  their  nature,  their  variety,  and  their 
number,  are  susceptible  of  only  a  very  general  classification. 
Culpatory  acts  that  will  infringe  or  impair  a  private  right 
are  even  more  numerous,  more  varied,  and  less  capable  of 
predescnption.  If  all  rights,  and  all  possible  invasions  thereof, 
could  be  defined  and  catalogued,  it  would  not  be  difficult  to 
determine  whether,  in  a  particular  instance,  an  actionable 
wrong  has  been  done.  But  the  facts  and  circumstances  that 
give  rise  to  litigation  generally  come  into  existence  from 
unexpected  conduct  or  events  ;  and  from  a  confused  mass, 
the  operative  facts — investitive,  divestitive,  and  culpatory — 
are  to  be  gathered  and  differentiated,  and  resulting  rights 
402 


403  DISCOVERING  KIUIIT  UF  ACTION.  %S89 

and  liabilities  determined.  To  conduct  this  discriminating- 
investigation,  this  legal  diagnosis,  and  thereby  to  find  out 
whether  there  is  a  right  of  action,  the  pleader  must  be  able= 
to  distinguish  operative  facts  from  evidential  facts,  and  to 
determine  from  tlie  operative  facts  wliether  a  legal  right  has 
been  impaired,  by  an  actionable  wrong. 

389.  Damnum  and  Injuria  Distinguished. — It  is  not 
uncommon,  in  the  consideration  of  facts  for  the  purpose  of 
determining  whether  there  is  a  right  of  action,  to  give  undue 
weight  to  the  circumstances  of  inconvenience  and  loss.  It 
is  these  alone  that  the  parti/  contemplates  and  complains  of. 
But  it  must  here  be  borne  in  mind  that  it  is  not  the  purpose 
of  the  substantive  law  to  punish  wrong-doers ;  nor  is  it  the 
purpose  of  civil  actions  to  compensate  for  all  inconvenience 
and  loss  ;  it  is  their  purpose,  primarily,  to  protect  legal  rights. 
The  proper  inquiry  at  the  outset,  then,  is,  whether  a  right 
recognized  by  the  law  has  been  invaded,  or  is  threatened. 
And  here  it  must  be  premised,  that  there  is  a  clear  distinction 
between  cases  new  in  principle,  and  those  new  only  in  the 
instance.  That  a  cause  of  action  is  novel,  and  without  pre- 
cedent, furnishes  no  ground  of  objection,  provided  the  right 
asserted,  and  the  wrong  complained  of,  are  within  recognized 
principles  of  the  law.  A  case  may  not  be  within  the  limits 
of  any  adjudged  case,  or  of  any  precise  authority,  and  yet  be 
clearly  within  recognized  legal  principles,  and  hence  cogniz- 
able by  the  courts.^ 

The  ultimate  object  of  the  law  is,  the  conservation  of  legal 
rights,  and  compensation  in  damages  is  only  a  subordinate 
end,  resorted  to  for  the  promotion  of  the  law's  general  pur- 
pose— the  protection  of  rights.  It  follows,  as  a  logical  se- 
quence, that  a  loss,  to  be  remediable  by  action,  must  result  from 
the  unathorized  impairment  of  a  legal  right,  and  that  where 
there  is  no  recognized  right,  there  can  be  no  actionable  wrong ; 
and  it  follows,  as  a  practical  result,  that  one  may  sustain 
loss  by  the  act  of  another,  and  yet  have  no  right  to  compen- 

1  Broom's  Max.   193  ;  Per  Peck-    downer  v.  M.  &  E.  R.  Co.,  42  Hun, 
HAM,   J.,   in  Piper  v.    Hoard,    107   .444,447. 
N.  Y.  73  ;    Per  Pratt,  J.,  in  Mul- 


§  300  APPLICATION  OF  PRINCIPLES.  494 

sation  by  means  of  an  action.^  In  other  words,  to  give  one  a 
right  of  action  for  loss  sustained  by  the  act  of  another,  there 
must  be  both  actual  loss,  and  legal  injury. 

Not  only  must  the  loss  sustained  result  from  the  invasion 
of  a  recognized  legal  right,  but  the  interference  therewith, 
the  act  or  omission  complained  of,  must  be  wrongful ;  for  if 
loss  be  sustained  by  reason  of  an  act  or  omission  that  is  not 
legally  wrongful,  the  loss  is  damnum  absque  injuria,  and  is 
not  remediable  by  action.  On  the  other  hand,  one  can  not 
sustain  an  action  against  another  who  has  done  a  wrongful 
act,  unless  he  has  thereby  sustained  legal  damage.  Such  act 
would  not  be  legally  wrongful,  because  not  legally  hurtful. 

It  is  clear,  therefore,  that  to  give  rise  to  an  actionable  right 
and  an  actionable  liability,  there  mu£t  be  both  legal  damage 
and  legal  wrong — damnum  cum  injuria. 

390.  Damnum  absque  Injuria — Illustrative  Cases. — If, 
by  fair  competition,  one  man  interfere  with  another's  business 
and  occasion  him  loss  of  trade,  the  latter  has  no  right  of 
action,  because,  thougli  he  has  suffered  damage,  there  has 
been  no  legal  injury.  His  full  legal  right  to  carry  on  busi- 
ness is  qualified  by  the  equal  right  of  every  other  person  to 
engage  in  the  same  business ;  and  this  qualified  rigiit  has 
not  been  encroached  upon.  His  loss  is  damnum  absque  in- 
juria? 

If  one,  while  doing  what  is  lawful,  and  in  the  exercise  of 
due  care,  injure  another  by  pure  accident,  the  latter  is  rem- 
ediless, because  no  legal  right  has  been  violated.  The  right 
of  personal  security,  in  its  totality,  is  only  to  enjoy  such  per- 
sonal safety  as  the  exercise  of  reasonable  care  by  others  will 
afford.  If,  for  example,  one's  horse  should  be  frightened 
by  some  sudden  noise,  and  become  unmanageable,  and  run 
against  a  person,  or  another  horse,  and  do  injury,  the  driver 
of  the  frightened  horse,  if  not  negligent  in  the  premises, 
would  not  be  liable  in  damages.'" 

1  Ante,  27.  38  ;  Brown  v.  Kendall,  6  Cush.  292  ; 

2  Rogers  v.  Dutt,  13  Moore  P.  C.  Wakeman  v.  Robinson,  1  Bing. 
C.  207,  241.  213.     But  some  of  the  cases  make 

•  Gibbons  v.  Pepper,  1  Ld.  Raym.     a    distinction   between    accidents 


405  DISCOVERING  RIGHT  OF  ACTION,  g  390 

Injuries  inflicted  from  necessity  are,  as  a  rule,  not  action- 
able. If  a  lighted  firework  be  by  accident  thrown  into  a 
coach  full  of  people,  and  they  throw  it  out  in  necessary  self- 
defense,  a  bystander  who  is  unintentionally  struck  and  in- 
jured has  no  right  of  action  against  the  persons  who  so  threw 
it  against  him.  The  act,  being  necessary  in  self-defense,  was 
not  wrongful,  and  invaded  no  legal  right  of  the  bystander.^ 
So,  if  a  boat  be  overloaded  with  merchandise,  a  passenger 
maj-,  in  case  of  necessity,  throw  overboard  sufficient  of  the 
goods  to  afford  safety  for  himself  and  fellow  passengers.^ 
And  if  the  highway  be  impassable,  a  traveler  may,  of  neces- 
Gity,  pass  over  the  adjoining  land.^ 

If,  after  a  will  has  been  made,  devising  property,  a 
third  person  induce  the  testator,  by  false  and  fraudulent  rep- 
resentations, to  revoke  it,  the  person  named  as  devisee  will 
have  no  right  of  action  against  such  third  person,  because  the 
revocation  merely  deprived  him  ;  f  an  expected  gratuity,  and 
did  not  interfere  with  any  legal  rignt,*  A  creditor  has  no 
right  of  action  against  one  who  induces  the  debtor  not  to 
pajs  or  an  officer  not  to  collect  a  demand  placed  in  his  hands 
for  collection.^  And  it  is  said  that  one  who  is  prevented 
from  attaching  property,  by  the  fraudulent  representations 
of  the  owner,  or  of  his  agent,  has  sustained  no  legal  damage, 
though  another  attachment  should  intervene,  and  the  debt 
be  lost ;  ^  aliter^  if  the  attachment  had  been  levied,  and  then 
lost  by  reason  of  the  deceit.  In  the  one  case,  only  an  inten- 
tion to  attach  was  frustrated ;  in  the  other,  an  acquired  lien 
was  lost.     The  loss  of  the  debt  is  too  remote. 

from  acts  that  are  involuntary,  and  *  3  Kent  Com.  424. 

from  those  done  voluntarily.     Cf,  *  Hutchins  v.  Hutchins,  7  Hill, 

Nichols  V.  Marsland,  10  Ex.  L.  R.  104.     Cf   Kimball  v.   Harmon,  34 

255  ;     Marshall     v.     Welwood,     9  Md.  407 ;    s.   c.  6  Am.   Rep.   340 ; 

Vroom,   839;    s.   c.    20  Am.   Rep.  Knights     Templar,    etc.,     Co.     v. 

394.  Gravett,  49  111.  App.  252. 

1  Scott  V.  Shepherd,  2  W.  Black.  ^  piatt  v.  Potts,  13  Ired.  455. 
892  ;  Richer  v.  Freeman,  50  N.  H.  «  Bradley   v.   Fuller,    118    Mass. 
420  ;    s.  c.  9  Am.  Rep.    267.     Cf.  239.     Cf.  Lamb  v.  Stone,  11  Pick. 
Guille  V.    Swan,    19    Johns.  381 ;  527  ;  Wellington  v.  Small,  3  Gush. 
S.  c.  10  Am.  Dec.  234.  145. 

2  Mouse's  Case,  12  Coke's  Rep.  63. 


§  391  APPLICATION  OF  PRINCIPLES.  4.QQ 

In  the  foregoing,  and  in  like  cases,  the  loss  is  irreparable 
by  action,  because  the  orbit  of  the  legal  right  has  not  been 
impinged  upon.^ 

391.  Right  of  Action  without  Appreciable   Loss. — 

Damage,  in  legal  contemplation,  does  not  always  involve 
pecuniary  loss.  Every  injury  to  a  legal  right  imports  a  dam- 
age, and  will  sustain  an  action,  though  there  be  no  pecuni- 
ary loss.  The  reason  is,  that  the  primary  object  of  the  law, 
and  of  procedure,  is  to  maintain  legal  rights  ;  and  it  is  tlie 
wrongful  invasion  of  such  right,  and  not  the  consequent 
loss,  that  makes  the  occasion  for  legal  interference.  The 
awarding  of  compensation  in  damages  is  only  a  means  to  an 
end,  and  the  awarding  of  only  nominal  damages,  where  no 
actual  loss  has  been  sustained,  fully  subserves  the  purpose 
and  end  of  the  law.  In  some  instances,  where  a  legal  right 
has  actually  been  invaded,  an  action  may  be  maintained 
before  there  has  been  time  for  actual  loss  to  ensue  ;  as,  where 
a  watercourse  has  been  diverted  from  the  plaintiff's  lands,  or 
where  the  eaves  of  a  house  have  been  projected  over  his  lands.^ 
An  action  may  be  maintained  by  an  elector  against  an  officer 
who  wrongfully  refuses  to  receive  his  vote,  notwithstanding 
the  candidates  for  whom  he  wished  to  vote  were  in  fact 
elected.  In  such  case  there  can  be  no  actual  pecuniary  loss, 
but  the  elector's  legal  right  has  been  infringed,  and  he  has, 
in  legal  contemplation,  been  damnified.^ 

Every  legal  injury  imports  a  damage;  and  where  there  is 
both  damage  and  injury,  the  law  gives  a  remedy  by  action, 
unless  the  infringement  of  right  be  so  trifling  as  to  fall  within 
the  maxim  de  minimis  non  curat  lex  ;  a  maxim  intended  to 
discourage  useless  and  malicious  litigation.*  An  action  will 
lie  for  trespass  upon  land,  without  actual  damage  j  for  other- 

*  Ante,  27.  the  inconsiderableness   of  the  in- 
2  Ang.  Lim.  300 ;  1  Suth.  Dam.     jury,  rather  than  to  the  amount 

766  ;  Wood  Nuis.  97.  of  damage    occasioned.      Paul  v. 

8  Ashby  V.  White,  2  Ld.  Raym.  Slason,   22  Vt.    231 ;    Williams  v. 

938  ;  Jeffries  v,  Ankeny,  11  Ohio,  Moctyn,  1  M.  &  W.  14o ;  Fullam  v. 

372.     Cf.  Blair  v.  Rigley,  41  Mo.  93.  Stcamc,  30  Vt.  443  -,  Wood  v.  Wand, 

*  This  maxim  has  a  very  limited  3  Exch.  74S  ;  Sampson  v.  Hodinott, 
application,  and  has  reference  to  1  Com.  B.  N.  S.  590. 


407  DISCOVERING  RIGHT  OF  ACTION.  §  392 

wise,  continued  encroachments  might  ripen  into  a  legal 
right.^  Aud  when  there  is  a  clear  legal  injury,  an  action 
will  lie,  even  though  the  plaintiff  be  in  fact  benefited  by  the 
act  of  the  defendant  complained  of.^ 

Where  a  telegraph  company  negligently  delays  the  deliv- 
ery of  a  message  directing  the  purchase  of  a  quantity  of 
wheat,  to  be  delivered  at  a  stated  time,  an  action  may  be 
maintained,  and  nominal  damages  recovered,  notwithstanding 
the  fact  that  the  delay  saved  the  sender  from  loss  that  he 
would  otherwise  have  suffered  by  reason  of  fluctuation  in  the 
price  of  wheat  in  the  interim.^  Where  a  banker,  having 
sufficient  funds  of  his  depositor,  wrongfully  refuses  to  cash 
the  latter's  check,  he  is  liable  to  an  action  by  the  depositor, 
though  he  sustained  no  actual  loss  by  reason  of  the  refusal.* 

It  will  be  seen  from  the  foregoing  illustrative  cases,  that 
the  law,  regarding  the  infringement  of  a  right,  rather  than 
the  pecuniary  consequences  of  the  infringement,  will  give 
an  action  where  there  is  a  wrongful  violation  of  a  recognized 
legal  right,  whether  actual  loss  ensue  or  not.  In  other 
words,  where  there  is  a  legal  right  of  the  plaintiff,  and  a 
delict  of  the  defendant,  an  action  may  be  maintained,  and 
nominal  damages  at  least  may  be  recovered.  It  must  here 
be  observed,  however,  that  there  is  an  exceptional  class  of 
cases,  to  be  considered  hereafter,  in  which  actual  damage 
is  an  essential  element  of  the  right  of  action,  and  in  which 
there  is  no  infringement  of  a  right,  unless  actual  damage 
result  from  the  act  complained  of.^ 

392.  Personal  Injuries — Death — Assault. — The  right 
of  personal  security  consists  in  uninterrupted  enjoyment 
of  one's  life,  person,  health,  and  reputation ;  and  it  imposes 
upon  all  others  the  duty  not  to  destroy  or  imperil  the  life. 


1  Williams  v.  Esling,  4  Barr,  486  ;  «  Hibbard  v.  W.  U.  Tel,  Co.,  33 
S.  C.  45  Am.  Dec.  710.  Wis.  558. 

2  Francis  v.  Schoellkopf,  53  N.  *  Marzetti  v.  Williams,  1  B.  &  Ad. 
Y.  153.  Cf.  Stowell  v.  Lincoln,  11  415  ;  Rolin  v.  Steward,  14  C.  B. 
Gray,  434  ;  Munroe  v.  Stickney,  48  595.  Cf.  Cumming  v.  Shand,  5  H. 
Me.  462  ;  Monroe  v.  Gates,  48  Me.  &  N.  95. 

463  ;  Champion  v.  Vincent,  20  Tex.  «  Post,  426. 
811. 


§392  APPLICATION  OF  PRINCIPLES.  40S 

not  to  injure  or  annoy  the  person,  not  to  injure  or  endanger 
the  health,  and  not  to  defame  the  reputation. 

Strange  as  it  may  appear,  the  common  law  gave  no 
action  for  an  injury  resulting  in  death.  Lord  Ellenborough 
once  said,  that  "  the  death  of  a  human  being  can  not  be 
complained  of  as  an  injury."  ^ 

The  reason  for  this  denial  of  an  action  was,  that  by  the 
death,  the  matter  became  a  public  offense,  and  the  private 
injury  was  thereby  drowned  and  lost.^  But  in  England, 
and  in  most  of  the  states,  it  is  provided  by  statute,  that 
an  action  may  be  maintained  by  the  executor  or  admin- 
istrator of  the  deceased,  for  the  benefit  of  the  widow  and 
next  of  kin,  or  for  the  benefit  of  the  estate  of  the  dece- 
dent, where  the  circumstances  of  the  injury  are  such  that, 
if  death  had  not  ensued,  the  person  injured  could  have 
maintained  an  action  for  damages  in  respect  thereof. 
These  statutes  have  no  extra-territorial  operation;  and 
where  an  action  is  brought  in  one  state  for  an  injuiy  done 
in  another  state,  or  in  a  foreign  country,  it  must  be  alleged 
and  proved  that  the  law  of  such  state  or  country  is  the 
same  in  this  regard  as  the  law  of  the  forum. ^  And  any 
defense  that  would  have  been  available  in  an  action  brought 
by  the  injured  person, — such  as  his  contributory  negligence, 
or  that  the  injury  resulted  from  the  negligence  of  a  fellow- 
servant,  or  of  an  independent  contractor, — is  equally  avail- 
able in  an  action  brought  by  his  personal  representative. 

Not  every  inconvenience  or  injury  to  the  person  is  an 
invasion  of  the  right  of  personal  security.  An  assault,  or  a 
battery,  if  by  an  accountable  person,  and  without  excuse  or 
justification,  invades  such  right,  and  may  be  redressed  by 
action.     Personal  violence  used  in  justifiable  defense  of  one's 

1  Cooley  on  Torts,  14,  15  ;  Baker  2  Higgins  v.  Butcher,  Yelv.  89  ; 
V.  Bolton,  1  Camp.  493  ;  Carry  v.  Shields  v.  Yonge,  15  Ga.  349.  Con- 
Company,  1  Cush.  475.  Per  Cole,  tra,  Hyatt  v.  Adams,  16  Mich.  180. 
J. ,  in  Shearman  v.  West.  Stage  Co.,  8  Whitford  v.  Company,  23  N.  Y. 
24  Iowa,  515,  543.  Cf.  Green  v.  465 ;  Maher  v.  Norwich  Co.,  45 
Hudson  R.  Ry.  Co.,  2  Keyes,  294  ;  Barb.  226  ;  Selraa  Co.  v.  Lacy,  43 
Hyatt  V.  Adams,  16  Mich.  180 ;  Ga.  461 ;  Nashville  Co.  v.  Elkin,  6 
Eden  v.  L.  &  F.  Ry.  Co.,  14  B.  Cold.  582 ;  Shedd  v.  Moran,  10  DL 
Mon.  165.  App.  618. 


409  DISCOVERING  RIGHT  OF  ACTION.  §  393 

person,  property,  relative  or  friend,  if  not  excessive,  is  not 
actionable.^  Parents,  and  persons  in  loco  parentis,  may 
lawfully  use  reasonable  and  moderate  violence  as  a  means  of 
correction.^ 

393.  Liability  for  Injuries  to  Health. — The  law  very 
properly,  and  necessarily,  makes  a  wide  distinction  between 
injury  to  health,  and  mere  personal  discomfort.  It  is  appar- 
ent that  many  personal  discomforts  and  inconveniences  must 
be  borne  b}^  those  living  in  densely  populated  districts ;  and 
the  modes  of  life,  and  the  tastes  and  sensibilities  of  individ- 
uals, differ  so  much,  that  the  law  must  adopt  some  standard 
by  which  to  determine  when  there  is  such  interference  with 
health  and  comfort  as  to  invade  the  right  of  personal  secur- 
ity, and  confer  a  right  of  action.  The  law  has  accordingly 
adopted,  as  the  standard  or  measure  of  the  primary  right, 
that  degree  of  comfort  and  convenience  ordinarily  enjoyed 
by  persons  of  ordinary  tastes  and  susceptibilities.  What 
inconvenience  or  annoyance  will  materially  interfere  with 
the  ordinary  comforts  of  human  existence,  depends  much 
upon  the  place  where,  and  the  circumstances  under  which, 
the  thing  complained  of  occurs.  One  who  lives  in  a  town 
or  city  voluntarily  subjects  himself  to  the  annoyance,  and  to 
the  detriment  to  health,  necessarily  resulting  from  the  busi- 
ness properly  carried  on  in  his  locality.  He  may  not  expect 
the  air  to  be  as  fresh  and  pure  as  if  no  business  were  carried 
on  in  his  vicinity,  and  he  may  not  complain  of  noises  and 
noxious  gases,  so  long  as  they  do  not  interfere  with  the 
ordinary  comforts  of  life  in  such  towns. 

Where  plaintiff  sought  to  enjoin  the  owners  of  a  horse 
railroad  from  running  their  cars  on  Sunday,  on  the  ground 
that  they  were  thereby  deprived  of  the  enjoyment  of  the  day 
as  a  time  for  rest  and  religious  exercise,  relief  was  refused, 
on  the  ground  that  religious  meditation  and  devotional 
exercises  resulted  from  sentiments  that  were  not  universal, 
but  peculiar  to  individuals,  and  that  the  disturbance  com- 


1  Leward  v.  Basely,  1  Ld.  Raym.     &  F.  656  ;    Cooper  v,    McJunkin, 
62 ;  HiU  v.  Rogers,  2  Clarke,  67.         4  Ind.    290.       Cf.    Winterburn  v. 
»  Fitzgerald  v.  Northcote,  4  Fost.     Brooks,  2  Car.  &  K.  16. 


§394  APPLICATION  OF  PRINCIPLES.  410 

plained  of  was  not  a  privation  of  ordinary  comforts.  The 
court  said  :  "  Noises  which  disturb  sleep,  noxious  gases,  sick- 
ening smells,  corrupted  waters,  and  the  like,  usually  affect 
the  mass  of  the  community  in  one  and  the  same  way,  .  .  . 
and  can  be  judged  of  by  their  probable  effect  on  health  and 
comfort,  and  in  this  way  damages  may  be  perceived  and 
estimated.  Not  ^o  of  that  which  only  affects  thought  or 
meditation."  ^  Where  one  church  member  sued  a  brother 
member  for  disturbing  him  during  services  by  making  loud 
noises  in  singing,  reading,  and  talking,  the  court  said  :  "  The 
alleged  injury  is  not  the  ground  of  an  action.  There  is  no 
damage  to  the  plaintiff's  property,  health,  reputation,  or  per- 
son. He  is  disturbed  by  noises,  in  listening  to  a  sermon. 
Could  an  action  be  maintained  by  every  person  whose  mind 
or  feelings  were  disturbed  in  listening  to  a  discourse,  by  the 
noises  of  others,  the  field  of  litigation  would  be  extended 
beyond  endurance.  The  injury,  moreover,  is  not  of  a  tem- 
poral nature  ;  it  is  altogether  of  a  spiritual  character,  for 
which  no  action  at  law  lies."  ^ 

394.  Injuries  to  Reputation — Libel  and  Slander. — The 
law  regards  one's  good  reputation  as  a  thing  of  value,  and  for 
the  wrongful  defamation  thereof,  an  action  for  damages  may 
be  maintained.  But  not  all  injuries  to  reputation  are  remedi- 
able by  action.  In  a  large  class  of  cases,  where  the  words 
spoken  or  written  are  not  actionable  per  se,  if  the  party  can 
not  allege  and  prove  some  special  damage,  he  is  without 
remedy,  however  much  his  reputation  may  have  suffered. 
There  may  be  injury  to  one's  feelings,  and  indirectly  to  his 
reputation,  but  injury  that  can  not  be  estimated  in  dollars 
and  cents.     In  such  cases,  the  loss  is  damnum  absque  injuria. 

It    is  reputation,    and   not  character,^   to  which  the  law 

1  Sparhawk  V.  Ry.  Co. ,  54  Pa.  St.  value   of  plaintiflTs  property,  and 

401,  438.  rendered  it  unfit   for  a  place  of 

*  Owen  V.  Henman,  1  Watts  &  S.  worship. 
548;  State  v.  Linkhan,  69  N.  C.  ^  ^  man's  character  is  made  up  of 
214.  Cf.  Bap.  Ch.  v.  S.  &  T.  Ry.  his  real  qualities,  and  depends  upon 
Co.,  6  Barb.  79,  where  the  defend-  what  he  really  is  ;  his  reputation 
ant  was  held  liable  for  making  such  is  the  general  estimate  of  his  char- 
noises  as  greatly  depreciated  the  acter,    and    depends    upon    wliat 


411  DISCOVERING  RIGHT  OF  ACTION.  §  395 

attaches  value  in  such  cases,  and  which  it  undertakes  to  pro- 
tect. Hence,  defamatory  words,  to  be  actionable,  must  affect 
his  reputation ;  and  to  do  this,  they  must  be  communicated 
to  other  persons,  and  must  be  understood  by  them.  There- 
fore, defamatory  words  uttered  in  the  presence  and  hearing  of 
only  the  person  speaking  and  the  person  spoken  of,  can  not 
affect  reputation,  and  are  not  actionable,  because  there  has 
been  no  publication  of  the  words,  and  the  person's  legal  right 
— that  which  the  law  recognizes  and  protects — has  not  been 
invaded.^  For  the  same  reason,  defamatory  words  spoken  in 
the  presence  and  hearing  of  others,  but  in  a  foreign  language, 
and  not  understood  by  any  who  heard  them,  are  not  action- 
able. ^ 

Defamatory  words,  to  be  actionable,  must  be  false,  and 
must  be  alleged  to  be  false.  The  truth  of  the  charge  com- 
plained of  is  a  good  defense.^  This  is  said  to  be  on  the 
theory  that  a  person  has  no  legal  right  to  a  false  reputation.^ 

395.  Requisites  Preliminary  to  Remedial  Right. — It 
has  heretofore  been  shown  that  where  the  right  of  a  plaintiff* 
depends  upon  his  performance  of  a  condition  precedent,  a 
remedial  right  does  not  accrue  until  he  performs,  or  tenders 
performance,  of  such  condition ;  and  that  in  his  complaint  in 
such  case,  the  plaintiff  must  allege  performance,  or  tender  of 
performance,  or  he  must  state  facts  that  relieved  him  from 
performance.^  The  performance  of  a  condition  precedent,  or 
a  legal  equivalent  to  performance,  is  a  prerequisite  to  the 
accruing  of  the  remedial  right. 

So,  demand,  or  notice,  may  be  a  prerequisite  to  the  exist* 

others  think  of  him.     So,  one  may  Per  Strong,  J.,  in  TerwilHger  v. 

have  a  good  reputation,  and  a  bad  Wands,  17  N.  Y.  54,  63. 

character ;  or  he  may  have  a  good  '^  Biqelow,  J.,  in  Sheifill  v.  Van 

character,   and  a  bad  reputation.  Densen,  ISGray,  304.     C/.  Wheeler 

Calumny  may  injure  his  reputa-  &    Appleton's    Case,    Godb.    340 ; 

tion,  but  not  his  character.  Desmond  v.  Brown,  33  Iowa,  13. 

1  SheffiU  v.  Van  Densen,  13  Gray,  ^  Foss  v.  Hildreth,  10  Allen,  76; 

304 ;  Broderick  v.  James,  3  Daly,  King  v.  Root,  4  Wend.   113.     Cf. 

481 ;  Phillips  v.  Jansen,  2  Esp.  624  ;  Van  Aukin  v.  Westfall,  14  Johns. 

Lyle  V.  Clason,  1  Caines,  581 ;  Force  233. 

V.  Warren,  15  Com.  B.  N.  S.  808  ;  *  Big.  on  Torts,  50. 

6  Ante,  329. 


§395  APPLICATION  OF  PRINCIPLES.  412 

ence  of  a  right  of  action.  One  may  have  a  right  to  money 
or  property  in  the  hands  of  another,  and  yet  not  be  entitled 
to  sue  for  it.  The  reason  is,  that  his  right  is  only  a  primary 
right;  that  no  delict  could  be  affirmed  of  him  who  is  in  pos- 
session. It  is  a  general  rule,  subject  to  but  few  exceptions, 
that  where  one  is  lawfully  in  possession  of  the  money  or  pro- 
perty of  another,  he  is  not  liable  to  action  unless  there  has 
been  demand,  and  refusal  to  deliver.^  Where  a  sheriff  has 
money  in  his  hands,  collected  on  execution,  he  is  not  liable 
to  an  action  therefor  by  the  execution  creditor,  until  after 
demand  and  refusal  to  pay  over.^  The  money  belongs  to  the 
creditor,  and  he  has  a  right  to  receive  it  from  the  sheriff. 
But  this  is  a  primary  right  only,  and  it  is  not  invaded  by  the 
sheriff,  until,  upon  demand,  he  refuses  to  pay  over.  The 
sheriff  received  the  money  lawfully,  and  may  rightfully  re- 
tain it  until  called  for  ;  and  until  demand  and  refusal  to  pay, 
there  is  no  delict  of  the  sheriff,  to  complete  the  remedial  right 
of  the  creditor. 

Upon  principle,  the  finder  of  lost  property,  having  it  in  his 
custody,  is  not  liable  to  an  action  by  the  owner  to  recover  the 
property  or  its  value,  until  after  demand  thereof  and  refusal 
to  deliver.^  The  owner  of  lost  property  has  not  lost  his 
title  thereto,  though  he  has  parted  with  the  possession.  But 
the  finder  who  takes  the  property  into  his  custody  infringes 
no  right  of  the  owner ;  no  culpatory  fact  could  be  affirmed  of 
him,  and  hence  no  right  of  action  against  him  could  be  stated. 

1  A  like  rule  applies,  and  for  like  liver,  and  a  conversion  ;  in  detinue, 
reason,  as  to  the  running  of  interest  demand  and  refusal  were  alleged  ; 
on  the  money  of  another  that  is  and  in  replevin,  at  common  law, 
received  by  mistake.  1  Suth.  on  the  taking  was  the  culpatory  fact. 
Dam.  621  ;  3  Par.  on  Contr.  102  ;  In  Shaffer  v.  McKee,  19  O.  S.  526, 
2d  St.  Passenger  Ry.  Co.  v.  City  of  to  recover  money  honestly  received 
Philadelphia,  51  Pa.  St.  465.  Cf.  by  defendant  on  plaintiff's  draft, 
Sibley  v.  Pine  Co.,  31  Minn.  201  ;  there  was  demand  and  refusal  be- 
Boston  &  Sandwich  Glass  Co.  v.  fore  action  brought.  Cf.  Severin 
City  of  Boston,  4  Met.  181  ;  Dodge  v.  Keppel,  4  Esp.  156  ;  Big.  on 
V.  Perkins,  9  Pick.  368.  Torts,   201  ;   2   Kent   Com.    356  ;  2 

2  State  V.  Newman's  Exr.,  2  O.  S.  Wait  Ac.  &  Def .  235  ;  Smith's  Right 
567 ;  Keithler  v.  Foster.  22  O.  S.  27.  &  Law,  192.     In  some  of  the  states, 

'  In  trover,  the  declaration  al-  the  rights  of  the  finder  of  lost  prop- 
leged  a  demand,  a  refusal  to  de-    erty  are  regulated  by  statute. 


413  DISCOVERING  RIGHT  OF  ACTION.  §  396 

But  if,  upon  demand  by  the  owner,  the  finder,  having  no 
right  to  retain  the  property  on  any  ground,  refuses  to  deliver 
it,  a  right  of  action  accrues.  The  primary  right  of  the  owner, 
and  this  delict  of  the  finder,  give  rise  to  a  remedial  right.^ 
Of  course  demand  can  be  necessary  only  where  the  adverse 
possession  is  lawful.  A  thief  may  be  sued  without  demand, 
for  the  asportation  is  a  culpatory  fact.  And  actual  conver- 
sion by  one  lawfully  in  possession  of  another's  property  would 
dispense  with  demand,  for  the  tort  would  itself  terminate  the 
right.  Demand  will  be  presumed  after  the  lapse  of  the  time 
limited  for  bringing  an  action,  and  the  statute  of  limitations 
will  then  begin  to  run.^ 

396.  Considerations  of  Public  Policy. — At  the  very 
base  of  law  and  its  administration  lies  the  principle  embodied 
in  the  maxim  salus  populi  suprema  lex — the  welfare  of  the 
people  is  the  highest  law.  One  may  not  lawfully  do,  or 
obligate  himself  to  do,  that  which  tends  against  the  public 
good ;  and  the  courts  will  not  uphold  a  transaction  when  it 
will  tend  to  the  prejudice  of  the  general  welfare.  Indeed, 
it  is  the  first  duty  of  the  courts  to  look  to  the  welfare  of  the 
people,  and  not  to  enforce  any  engagement  when  it  would 
be  inimical  thereto.  And  it  matters  not  that  the  particular 
transaction  is  free  from  corrupt  motive,  or  that  in  fact  no 
public  detriment  will  follow  in  the  particular  instance ;  the 
law  looks  only  to  the  general  tendency  of  such  transactions.^ 
In  determining  whether  a  given  state  of  facts  confers  a  right 
of  action,  or  will  furnish  a  defense,  the  inquiry  whether  the 
transaction  involved  is  consistent  with,  or  repugnant  to, 
public  policy,  should  never  be  overlooked. 

Among  the  contracts  that  will  not  be  enforced,  because 
against  public  policy,  are  the  following  :  Contracts  affecting 
the  administration  of  justice,  the  public  service,  personal 

1  Tlie  finder  of  a  lost  chattel  is  «  Keithler  v.  Foster,  22  O.  S.  27  ; 

entitled  to  indemnity  for  his  neces-  Ang.  on  Lim.  96. 

sary  and  reasonable  expenses  in-  ^  Holladay  v.  Patterson,  5  Oreg. 

curred  on  account  thereof,  but  it  177,  180  ;  Richardson  v.  Crandall, 

seems  that  he  has  no  lien  on  the  48  N.  Y.  348,  362. 
chattel  therefor.    2  Kent  Com.  356  ; 
2  Wait  Ac.  &  Def .  234. 


§397  APPLICATION  OF  PRINCIPLES.  414 

liberty,  the  domestic  relations,  or  commercial  freedom ; 
<;ontracts  impairing  legal  rights,  or  promotive  of  crime,  im- 
morality, dishonesty,  gambling,  and  prostitution .^ 

397.  Actions  to  Declare  a  Right,  or  to  Prevent  an  In- 
Jury. — in  actions  for  legal  relief,  the  remedial  right  is  dis- 
played by  a  brief  and  simple  statement  of  facts  showing  the 
primary  right  of  plaintiff,  and  the  defendant's  wrongful  in- 
vasion thereof ;  and  the  operative  facts  to  be  considered  in 
determining  whether  in  a  given  case,  there  is  a  right  to  legal 
relief,  are  comparatively  few.  But  in  actions  for  equitable 
relief,  not  only  the  operative  facts,  but  the  rights  and  delicts 
as  well,  are  sometimes  very  numerous  and  complex.  In 
determining  the  primary  rights  and  duties  of  parties  in  equity, 
there  must  very  often  be  an  adjustment  of  opposing  claims  ; 
and  the  decree  to  be  obtained  in  equity  may  be  as  complex 
and  involved  as  are  the  rights  and  delicts  of  the  parties, 
awarding  partial  relief  to  different  parties,  providing  for 
future  contingencies,  or  restraining  threatened  wrongful 
acts,  and  sometimes  only  ascertaining  and  declaring  the  pri- 
mary rights  of  the  parties  litigant.  The  English  courts,  not 
infrequently,  it  is  said,  entertain  actions  simply  to  ascertain 
and  declare  the  primary  rights  of  parties,  where  neither 
compensatory  nor  preventive  relief  is  sought ;  the  policy  of 
the  law  being  to  allow  parties  to  a  controversy  to  have  a 
question  of  right  thus  predetermined,  so  that  they  may 
govern  themselves  accordingly.^  But  American  courts, 
with  rare  exceptions,  decline  to  entertain  such  actions. 

Where  a  legacy  to  a  college  was  payable  in  two  years, 
provided  the  college  performed  certain  conditions  within  one 
year,  the  parties,  in  an  agreed  case  brought  within  the  year, 
asked  the  court  to  determine  whether  certain  admitted  facts 
amounted  to  a  performance  of  the  conditions,  and  if  not, 
what  further  acts  were  required.  The  action  was  dismissed, 
on  the  ground  that  the  case  disclosed  no  controversy  between 
the  parties,  and  that  the  question   whether  the  conditions 

*  For  a  full  and  exhaustive  treat-    Hughes'  Technology  of  Law,  176- 
ment  of  this  subject,  see  Greenhood    183. 
on    PubHc    Policy,  passim  ;   also,        2  23  Abb.  N.  C.  447,  note. 


415  DISCOVERING  RIGHT  OF  ACTION.  §  398 

had  been  performed  could  not  be  the  subject  of  judicial  con- 
troversy, until  the  two  years  had  expired.^ 

It  has  been  held,  that  after  loss  under  a  fire  insurance, 
a  pledgee  of  the  policy  may  maintain  an  action  in  equity 
against  the  insurance  company  and  the  insured,  to  restrain 
the  company  from  paying  the  insured,  and  to  establish  tlie 
right  of  the  plaintiff  to  recover  whatever  may  be  payable 
under  the  policy,  leaving  the  liability  of  the  company  to  be 
determined  in  a  subsequent  action  at  law.  This  was  on  tlie 
equitable  ground  that  the  circumstances  of  the  pledgor  were 
such  that  the  payment  to  him  would  imperil  the  plaintiff's 
rights  2  An  action  in  equity  will  lie  to  ascertain  and  fix 
the  boundaries  between  adjacent  parcels  of  land  when  they 
have  become  confused  or  obscure,  and  when  there  is  some 
peculiar  equity  attaching  to  the  controversy,  even  though 
neither  party  is  at  fault,  and  no  delict  can  be  averred.^ 

398.  Actions  to  Declare  a  Right,  or  to  Prevent  an  In- 
jury, Continued. — A  surety  who  apprehends  loss  from  the 
delay  of  the  creditor  to  enforce  payment  by  the  principal,  may, 
by  a  bill  quia  timet,  compel  the  debtor  to  discharge  the  obliga- 
tion ;  or  he  may,  in  like  manner,  compel  the  creditor  to 
enforce  payment  by  the  debtor,  and  thus  protect  himself  from 
prospective  injury.*  And  actions  may  be  maintained  in 
equity  to  quiet  title,  to  direct  a  trustee,  and  to  enjoin  a 
threatened  injury.  So  that  it  can  not  be  said  that  the  actual 
invasion  of  a  right  is  always  a  prerequisite  to  the  mainten- 
ance of  an  action  ;  on  the  contrary,  an  action  will  sometimes 
be  entertained  simply  to  guard  against  probable  or  prospect- 
ive injury,  and  to  preserve  existing  rights  from  imminent 
or  contingent  violations.^  The  principle  upon  which  such 
actions  are  entertained  is,  that  one  whose  rights  are  threatened 
or  questioned  ought  to  be  allowed  to  have  the  menace  to  his 

1  Hobart  College  v.  Fitzhugh,  27  3  Pom.  Eq.  Jur.  1384  ;  1  Sto.  Eq. 
N.  Y.  130  ;  s.  c.  23  Abb.  N.  C.  448,     Jur.  621. 

in  nota.  *  1  "Wait   Ac.    &   Def.   656,    ami 

2  Mahr  v.  Bartlett,  53  Hun,  388  ;  cases  cited  ;  3  Pom.  Eq.  Jur.  141 7  ; 
S.  c.  23  Abb.  N.  C.  436.  Brandt  on  Suretyship,  223. 

8  Boyd  V.  Dowie,  65  Barb.  237  ;  »  Bisph.  Prin.  of  Eq.  568  ;  Pom. 
Wolf  V.  Scarborough,  2  O.  S.  361  j    Rem.  522. 


§399  APPLICATION  OF  PRINCIPLES.  4ig 

rights  dispelled  at  once,  rather  than  be  compelled  to  suffer 
them  to  hang  over  him  until  actual  loss  should  result.  In 
no  other  way  can  such  rights  be  fully  protected.^ 

It  may  here  be  added,  that  when  one  party  to  a  contract 
has  renounced  it,  the  other  may  at  once  maintain  an  action 
thereon,  although  the  time  fixed  for  performance  has  not 
passed.2  For  example,  if  a  date  is  fixed  for  the  performance 
of  a  marriage  contract,  and  before  that  date  one  of  the  parties 
refuses  to  perform  the  contract  at  any  time,  the  other  may  at 
once  sue  for  the  breach  of  the  promise,^  And  if  one  of  the 
parties  marry  another,  and  so  put  it  out  of  his  or  her  power 
to  fulfill  the  contract,  a  right  of  action  at  once  accrues ;  and 
no  request  to  marry  need  be  made  or  alleged.^ 

n.    THE  SUBSTANTIVE  LAW  THAT  IS  APPLICABLE. 

399.  The  Laws  that  may  GrOYern  in  Particular  Cases, 

— Facts  are  made  operative  by  law ;  and  to  determine  whether 
certain  operative  facts  confer  a  right  of  action,  they  must  be 
•considered  with  reference  to  the  substantive  law  that  is  prop- 
erly to  be  applied  to  them.  Generally,  the  law  of  the  state 
having  jurisdiction  to  make  the  application — the  lex  fori — is  to 
be  applied;  but  as  rights  may  subsist  outside  of  the  state  or 
country  whose  laws  originally  gave  them  validity,  and  as 
courts  will  generally  enforce  such  rights,  it  follows  that  effect 
will  sometimes  be  given  to  a  law  other  than  that  of  the  forum. 
And  in  cases  governed  by  the  lex  fori,  the  question  may  arise 
whether,  when  there  has  been  a  change  in  the  law,  the  opera- 
tion of  the  facts,  as  well  as  the  conduct  of  the  procedure,  is 
to  be  governed  by  the  new  law,  or  by  the  old. 

The  inhabitants  of  a  municipal  corporation  are  subject  to 

1  Ante,  1.  3  Burtis  v.  Thompson,  42  N.  Y. 

2  Bayne  v.  Morris,  1  Wall.  97 ;  246  ;  s.  c.  1  Am.  Rep.  516 ;  Hollo- 
McCormick  v.  Basal,  46  Iowa,  235  ;  way  v.  Griffith,  32  Iowa,  409  ;  s.  c. 
Hochster  v.  De  La  Tour,  2  E.  &  B.  7  Am.  Rep.  208  ;  Frost  v.  Knight, 
678 ;  D.  &  B.  S.  Ry.  Co.  v.  Xenos,  L.  R.  7  Ex.  111. 

13  C.  B.   (N.   S.)  825  ;  Lovelock  v.  *  Short  v.    Stone,    8  Q.    B.  358 : 

Franklyn,  8   Q.    B.    371 ;   Short   v.  Lovelock  v.  Franklyn,  8  Q.  B.  371 ; 

Stone,  8  Q.  B.  358.     Cf.  Maud  v.  Clements    v.   Moore,    11    A\n.    "'■> ; 

Maud,  33  O.  S.  147,  149.  King  v.r  Kesey,  2  Ind.  4C2. 


417 


DISCOVERING  RIGHT  OF  ACTION. 


1400 


the  ordinances  of  the  municipality,  to  the  statutes  of  the 
state,  and  to  the  laws  enacted  by  congress  ;  and  in  the  con- 
sideration of  the  affairs  of  citizens  of  the  municipality,  it  may 
be  necessary  to  determine  by  which  set  of  enactments  the 
rights  of  the  individual  are  to  be  determined  in  the  particular 
instance. 

The  law  by  which  the  rights  and  obligations  of  parties  are 
to  be  determined,  when  other  than  that  of  the  forum,  may  be 
that  of  the  country  or  state  in  which  one  or  the  other  is 
domiciled — the  lex  domicilii,  or  in  which  the  thing  in  question 
is  situated — the  lex  loci  rei  sitce,  or  in  which  a  particular 
contract  was  made — the  lex  loci  contractus,  or  in  which  a  con- 
tract was  so  be  performed — the  lex  loci  solutionis.^ 

400.  The  Lex  Domicilii. — A  man's  domicile  is  where  he 
has  his  fixed  and  permanent  home,  to  which,  when  absent,  he 
has  the  intention  of  returning.  It  differs  from  residence, 
which  may  be  transient  in  its  nature.     A  residence  becomes 


1  The  substantive  law  enters  into, 
and  is  an  element  of,  vested  rights, 
and  a  change  thereof  does  not  im- 
pair such  right ;  but  the  right  to  a 
particular  remedy,  not  being  a 
vested  right,  may,  as  a  rule,  be 
affected  or  lost  by  a  change  of  the 
law  of  procedure.  A  vested  right 
of  action  rests  upon  the  substan- 
tive law,  and  may  not  be  arbitrarily 
interfered  with  by  a  change  of  the 
law.  Cooley's  Const.  Lim.  358*- 
362*.  But  a  law  changing  procedure 
applies  thereafter  as  well  to  actions 
pending  when  the  statute  was 
passed,  as  to  those  subsequently 
commenced,  unless  the  former  are 
specially  excepted.  Lazarus  v.  Ry. 
Co.,  145  N.  Y.  581.  "The  court 
can  not,  under  guise  of  an  amend- 
ment or  repeal  of  a  statute,  cut  off 
any  substantial  right  of  a  party  to 
have  his  case  decided  on  the  merits 
according  to  the  law  of  the  land. 
But  it  would  be  a  very  inconvenient 
rule,  tending  to  great  confusion,  if 
27 


a  rule  of  practice  existing  when  an 
action  is  commenced  attached  it- 
self to  the  substance  of  the  right  in 
litigation  so  that  it  could  not  be 
changed,  or  that  a  law  changing 
procedure  should  be  held  inappli- 
cable to  subsequent  proceedings  in 
pending  actions  unless  in  terms 
made  applicable  thereto.  It  is  the 
right  of  a  party  to  have  his  case 
heard  and  decided  in  the  orderly 
course  of  legal  procedure,  but  he 
has  no  right  to  demand  that  the 
procedure  prescribed  when  the  ac- 
tion was  commenced  should  remain 
unchanged.  He  prosecutes  his  ac- 
tion subject  to  the  power  of  the 
legislature,  in  matters  of  practice, 
to  abrogate  rules  existing  when  his 
action  was  brought,  or  to  make  ad- 
ditional rules."  Per  Andrews,  C. 
J.  ,in  Lazarus  v. Ry.Co. ,  supra.  Cf. 
State  ex  rel.  v.  Helmes,  136  Ind. 
122.  See,  also,  4  Thomp.  on  Corp. 
5437,  and  cases  cited. 


g400  APPLICATION  OF  PRINCIPLES.  413 

a  domicile  when  it  is  taken  up  animo  manendi.  Two  things 
must  concur,  to  make  domicile ;  the  fact  of  residence,  and  the 
intention  to  make  it  the  home  of  tlie  person.  One  who  goes 
abroad  animo  revertendi  does  not  change  his  domicile ;  the 
fact  of  residence  is  changed,  but  not  the  intent  that  distin- 
guishes domicile.  A  man  may  have  more  than  one  residence 
— lie  may  reside  a  part  of  the  time  in  the  city,  and  a  part  of 
the  time  in  the  country;  but  he  can  have  only  one  domicile.^ 

The  capacity  to  make  testamentary  disposition  of  personal 
property,  as  well  as  the  formalities  to  be  observed  in  the 
making  thereof,^  is  governed  by  the  law  of  the  testator's 
domicile,  not  at  the  time  of  making  the  will,  but  at  the  time 
of  his  death.'^  And  the  personal  property  of  an  intestate  will 
pass  according  to  the  law  of  his  domicile  at  the  time  of  his 
death,  regardless  of  the  actual  situs  of  the  property.*  Ujjon 
domicile  depend  many  civil  and  political  rights  and  obliga- 
tions ;  such  as,  the  right  of  suffrage,  the  right  to  relief  under 
the  poor  laws,  the  obligation  to  pay  taxes,  and  to  perform 
military  service. 

Domicile  is  an  essential  jurisdictional  fact  in  actions  for 
divorce.  Each  state  has  the  right  to  determine  the  status — 
the  social  and  domestic  condition — of  persons  domiciled  with- 
in its  ter^itor3^^  "  The  law  of  the  place  of  the  actual  bona 
fide  domicile  of  the  parties  gives  jurisdiction  to  the  proper 
courts  to  decree  a  divorce  for  any  cause  allowed  by  the  local 
law,  without  reference  to  the  law  of  the  place  of  the  marriage, 
or  the  place  where  the  offense  for  which  the   divorce  was 

1  See,  as  to  domicile  generally,  1  ^  Sto.  Confl.  Laws,  473  ;  Nat  v. 
Par.  on  Contr.  578-582  ;  Sto.  Confl.  Coons,  10  Mo.  543  ;  Moultrie  v. 
Laws,  41,  44 ;  2  Wait  Ac.  &  Def.  Hunt,  23  N.  Y.  394  ;  Dupuy  v. 
626-648  ;  5  Am.  &  Eng.  Encyc.  857.  Wurtz,  53  N.  Y.  556  ;  Damwert  v. 

2  Carey's  Appeal,  75  Pa.  St.  201  ;  Osborn,  141  N.  Y.  564. 

Dupuy  V.   Wurtz,    53  N.  Y.    556 ;  *  Sto.  Confl.  Laws,  481  ;  Vroom 

Moultrie  v.  Hunt,  23  N.  Y.   394  ;  v.  Van  Home,  10  Paige,  549  ;  Leach 

Grattan  v.  Appleton,  3  Story,  755  ;  v.  Pillsbury,  15  N.  H.  137  ;  Parsons 

Perin  v.  McMichen,    15  La.  Ann.  v.  Lyman,  20  N.  Y.  103. 

154  ;  Rue  High's  Appeal,  2  Doug.  ^  Strader  v.  Graham,  10  How.  82; 

515.     Cf.    Holmes    v.    Remson,    4  Cheever  v.  Wilson,  9  Wall.   108; 

Johns.  Cli.  460,   469  ;  Harrison  v.  Boynton,  C.  J.,  in  Van  Fossen  v. 

Nixon,  9  Pet.  483,  505.  State,  37  O.  S.  317. 


419  DISCOVERING  RIGHT  OF  ACTION.  §  401 

allowed  was  committed."  ^  It  follows,  that  the  courts  of  a 
state  or  country  have  not  jurisdiction  to  grant  a  divorce  for 
any  cause,  if  neither  party  has  an  actual  bona  fide  domicile 
within  its  territory .^  It  is  not  necessary  that  both  parties 
be  domiciled  within  the  state  ;  it  is  sufficient  if  either  be  so 
domiciled.^  But  where  neither  party  is  domiciled  within 
the  state  whose  court  decrees  a  divorce,  the  decree  is,  beyond 
the  limits  of  such  state,  a  nullit3\* 

401.  The  Lex  Loci  Rei  Sitae. — In  the  conveyance  of  real 
estate,  the  formal  requirements  of  the  law  of  the  place  where 
the  land  is  situated  must  be  observed,  in  the  absence  of  a 
statute  to  the  contrary.  Where  a  married  woman,  between 
eighteen  and  twenty-one  years  of  age,  domiciled  in  a  state 
where  the  age  of  majority  is  fixed  at  twenty-one  years,  there 
joins  with  her  husband  in  the  execution  of  a  mortgage  on 
lands  in  a  state  where  the  age  of  majority  is  eighteen  years, 
the  mortgage  is  valid  ;  her  capacity  to  execute  it  being  gov- 
erned by  the  law  of  the  situs^  and  not  by  the  law  of  her  dom- 
icile.^ So,  a  mortgage  executed  by  a  married  woman  as 
surety,  was  held  invalid,  because  prohibited  by  the  law  of  the 
situs^  though  authorized  by  the  law  of  her  domicile.^ 

Where  a  mortgage  is  given  in  one  state,  to  secure  a  loan 
payable  in  another  state,  a  question  may  arise  as  to  wdiich 
law  is  applicable.  The  test  in  such  case  seems  to  be,  that  if 
the  mortgage  is  a  mere  collateral  security,  the  money  being 
employed  in  another  state,  and  under  other  laws,  the  law  of 
such  state  applies ; ''    but  if  the  money  is  employed  on  the 

1  Sto.  Confl.  Laws,  230  a ;  Har-  180.  Cf.  Beard  v.  Beard,  21  Ind. 
rison    v.    Harrison,   19  Ala.   499 ;    321. 

Harding    v.    Alden,    9    Me.    140 ;  *  Van  Fossen  v.  State,   87  O.  S. 

People  V.    Dawell,    25   Mich.    247  .  317  ;  Sewell  v.  Sevvell,  122  Mass. 

Maguire  v.  Maguire,  7  Dana,  181  ;;  156  ;  Hoffman  v.  Hoflfman,  46  N. 

C'heever  v.  Wilson,  9  Wall.  108.  Y.  30  ;  Hood  v.  State,  56  Ind.  263  ; 

2  Shannon  v.  Shannon,  4  Allen,  People  v.  Dowell,  25  Mich.  247  ; 
134  ;  Leith  v.  Leith,  39  N.  H.  20  ;  Litovvich  v.  Litowich,  19  Kan.  451. 
House  V.  House,  25  Ga.  473  ;  Peo-  ^  Sell  v.  Miller,  11  O.  S.  331. 

pie  V.  Dawell,  25  Mich.  247;  Hard-  «  Swank  v.   Hufnagle,    111   Ind. 

ing  V.  Alden,  9  Me.  140  ;  Pawling  453.     Cf.  Hill  v.  Pine  River  Bk.,  45 

V.  Bird,  13  Johns.  192.  N.  H.  300. 

8  Wright  V.   W^right,   24    Mich.  ^  De  W^olf  v.  Johnson,  10  Wheat. 


§402  APPLICATION  OF  PRINCIPLES.  420 

land  mortgaged,  then  the  law  of  the  situs  will  obtain.^  A 
mortgage  on  land,  securing  a  note  for  borrowed  money,  dated 
in  the  state  where  the  land  was  situated,  but  made  payable 
in  another  state,  was  held  to  be  a  mere  incident  of  tlie  loan  ; 
and  the  transaction  being  usurious  by  the  law  of  the  latter 
state,  the  mortgage  was  held  void.^  In  another  case,  the 
court  refused  to  enforce  a  mortgage  given  to  secure  a  con- 
tract in  another  state,  because  the  contract  was  opposed  to 
the  policy  of  the  laws  of  the  state  where  the  land  was  situ- 
ated.^ 

402.  The  Lex  Loci  Contractus. — In  the  absence  of 
clearly  expressed  intention  to  the  contrary,  the  general  rule 
is,  that  contracts  are  to  be  governed  as  to  their  nature,  their 
validity,  and  their  interpretation,  by  the  law  of  the  place 
where  made.*  But  what  is  to  be  deemed  the  place  of  a  con- 
tract is  sometimes  a  question  of  the  greatest  difficulty.  A 
contract  is  made  when  the  parties  thereto  have  agreed ;  but 
one  may  express  his  assent  in  New  York,  and  the  other  in 
New  Orleans.  And  a  contract  may  be  made  in  one  place,  to 
be  performed  in  another ;  and  it  may  be  the  subject  of  an 
action  in  still  another  place. 

There  has  been  much  discussion  as  to  whether  the  marriagfe 
contract  should  be  governed  by  the  lex  domicilii,  or  by  the  lex 
loci  contractus ;  but  the  prevailing  doctrine  is,  that,  unless 
controlled  by  local  statute,  a  marriage  valid  by  the  law  of  the 
place  where  it  is  celebrated  is  valid  everywhere.  And  this 
is  so,  though  a  marriage  of  the  parties  would  be  invalid  if 
entered  into  in  the  place  of  their  domicile,  and  though  con- 
tracted in  express  evasion  of  the  law  of  their  domicile.^ 


383 ;  Newman  v.  Kerson,  10  Wis.  Cf.  Cope  v.  Alden,  53  Barb.  350 ; 

333  ;  Kennedy  v.  Knight,  21   Wis.  Chase  v.  Dow,  47  N.  H.  405. 

340  ;  Atwater  v.  Walker,  ICE.  ^  Flag  v.  Baldwin,  11  Stew.  219. 

Green,  42.  *  Liverpool,    etc..   Steam  Co.  v. 

1  Wharton    Confl.     Laws,     510  ;  Phenix  Ins.  Co.,  129  U.  S.  397,  453; 

Arnold  v.   Potter,   22    Iowa,  194 ;  Ang.    on  Lim.    64 ;    1   Dan.    Neg. 

Chapman  v.   Robinson,    6  Paige,  Instr.  867. 

627  ;  Goddard  v.  Sawyer,  9  Allen,  ^  Bish.   on  Mar.   &  Div.  355 ;  2 

78  ;  Pine  v.  Smith,  11  Gray,  38.  Par.  on  Contr.  593  ;  2  Wait  Ac.  & 

a  Sands  v.   Smith,   1   Neb.    108.  Def .  644. 


421  DISCOVERING  RIGHT  OF  ACTION.  §403 

It  may  be  said  to  be  a  general  rule  that  a  contract  valid 
under  the  law  of  the  place  where  made,  is  valid  everj' where  ; 
and,  e  converso,  a  contract  that  is  illegal  and  void  where 
made,  is  void  everywhere.  This  recognition  of  the  laws  of 
another  state  or  country  is  a  mere  matter  of  courtesy  and  pol- 
icy. Such  laws  have  no  extraterritorial  force,  proprio  vigore  ; 
and  their  recognition  in  particular  cases,  as  the  lex  loci  con- 
tractus, being  a  matter  of  comity  only,  will  not  be  extended 
to  contracts  that  would  violate  sound  morals,  or  the  law  of 
God,  or  the  general  policy  of  the  state  or  country  where  tliey 
are  sought  to  be  enforced.  If  a  promissory  note  be  made  in 
one  state,  and  payable  in  another,  and  the  legal  rate  of  inter- 
est is  different  in  the  two  states,  it  seems  that  either  rate 
may  be  contracted  for.^  But  if  no  interest  be  expressed,  the 
question  whether  it  shall  bear  interest,  and  if  so,  at  what 
rate,  is  to  be  determined  by  the  law  of  the  place  where  pay- 
able.^ 

Where  a  servant  is  injured  by  negligence,  within  the  state 
where  the  contract  of  employment  wac  made,  and  where  all 
the  services  were  to  be  performed,  and  sues  his  employer  in 
another  state,  the  laws  of  the  former  state  will  control  as  to 
whether  tlie  circumstances  give  a  right  of  action. ^  And 
where  a  passenger  is  being  carried  on  a  railroad  gratuitously, 
under  a  contract  whereby  he  assumed  all  risk  of  injury  from 
negligence,  and  is  injured  within  the  state  where  the  contract 
was  made,  and  by  the  laws  of  which  it  is  valid,  such  contract 
will  be  enforced,  and  will  prevent  his  recovery,  in  an  action 
brought  in  another  state,  even  though  by  the  law  of  the 
forum  such  contract  would  be  void.^ 

403.  The  Lex  Loci  Solutionis. — When  a  contract  is  en- 
tered into  in  one  place,  to  be  performed  in  another,  the  law 
of  the  former  place  governs,  generally,  as  to  the  nature  and 
validity  of  the  engagement,  but  the  law  of  the  latter  place 

12  Par.  on  Contr.  583,  584,  and  14  Vt.  33.     C/.  Kopelke  v.  Kopelke, 

cases  cited.  112  Ind.  435. 

Campbell  v.  Nichols,  33  N.  J.  81 ;        s  Alexander  v.  Pa.  Ry.  Co.,  48  O. 

Austin  V.  Imus,  23  Vt.  286  ;  Chase  S.  62.3. 

V.   Dow,  47  N.   H.   405;  Hunt  v.        *  Knowlton  v.  Erie  Ry .  Co. ,  19  O. 

Hall,  37  Ala.  702  ;  Peck  v.  Mayo,  S.  260. 


§404  APPLICATION  OF  PRINCIPLES.  422 

governs  as  to  the  performance.  This  is  because,  when  the 
parties  to  a  contract  designate  a  particular  place  for  perform- 
ance, it  is  fair  to  assume  that  the  executory  parts  of  the  con- 
tract were  made  with  reference  to  the  law  of  such  place.^ 
Whether  days  of  grace  are  allowable  on  a  negotiable  instru- 
ment is  determined  by  the  lex  loci  solutionis ;  ^  and  the  for- 
malities of  presentment,  protest,  and  notice  are  governed  by 
the  same  law.^  And,  as  we  have  seen,  the  rate  of  interest 
recoverable  where  no  rate  is  specified,  is  controlled  by  the 
same  law. 

404.  The  Lex  Fori  Governs  the  Remedy. — The  reme- 
dies for  breach  of  contract  must  be  pursued  according  to  the 
law  of  the  place  where  action  is  brought.  The  courts  are 
open  to  both  citizens  and  strangers,  for  the  enforcement  of 
rights  arising  under  both  domestic  and  foreign  contracts,  but 
the  procedure  must  follow  the  local  law  and  practice. 

It  has  heretofore  been  shown  that  the  time  within  which 
an  action  must  be  brought,  to  avoid  the  defense  of  the  stat- 
ute of  limitations,  is  governed  by  the  lex  fori,  except  in  those 
jurisdictions  where,  by  special  statutory  provision,  the  earlier 
bar  of  the  statute  where  the  right  of  action  arose  may  be 
pleaded ;  *  and  even  then  it  is  only  by  favor  of  the  lex  fori 
that  the  foreign  law  may  be  asserted. 

The  question  as  to  who  may  sue  and  be  sued,  the  form  of 
action  to  be  employed,  the  defenses  that  may  be  asserted,  the 
competency  of  witnesses  and  of  evidence,  the  kind  of  judg- 
ment, and  the  manner  of  enforcing  it,  are  all  to  be  governed 
by  the  law  of  the  forum,  except  so  far  as  under  the  law  some 
of  these  may  be,  and  in  fact  are,  controlled  by  the  terms  of 
the  contract  itself.^ 

1  1  Dan.  Neg.  Insti-.  879-881,  and       *  Ante,  338. 

cases  cited.  ^i  Dan.  Neg.   Instr.  882-892;  2 

2  Cribb  V.  Adams,  13  Gray,  597  ;  Par.  on  Contr.  588-592 ;  Ang.  op 
Bowen  V.  Newell,  13  N.  Y.  290.  Lim.   65.     C/.,    as  to    Statute    of 

8  Pierce   v.    Indseth,   106  U.   S.    Frauds,  ante,  335,  note. 
546  ;  Todd  v.  Neal,   49  Ala.  266  ; 
Wooley  V.  Lyon,  117  111.  244. 


423  DISCOVERING  RIGHT  OF  ACTION.        §^405-406 

HI.   PROXIMATE  AND  REMOTE  CAUSES  OF  INJURY. 

405.  The  Law  Regards  only  the  Proximate  Cause. — 

The  statement  of  a  right  of  action  must  not  only  show  that 
the  defendant  has  committed  a  legal  wrong,  and  that 
the  plaintiff  has  sustained  a  legal  injury;  it  must  appear 
also  that  the  wrong  complained  of  is  the  proximate  cause 
of  the  injury  sought  to  be  redressed. ^  The  injuria  and 
the  damnum  must  stand  in  the  immediate  relation  of 
cause  and  effect ;  there  must  be  a  natural  or  necessary  con- 
nection between  them  ;  and  this,  whether  the  injury  arise 
from  non-feasance,  from  mis-feasance,  or  from  mal-feasance. 
If  A.  break  his  contract  with  B.,  or  do  other  legal  wrong  to 
B.,  the  result  may  be  more  hurtful  to  C  than  to  B.  But  C. 
can  not,  in  general,  maintain  an  action  against  A. ;  because, 
in  the  one  case,  he  was  not  privy  to  the  contract,  and  in  the 
other  case,  although  he  suffered  the  damnum,  it  was  B.  who 
suffered  the  injuria.  The  delict  of  A.  would  be  the  remote 
cause  of  C.'s  damage. 

The  doctrine  of  causation,  considered  both  metaphysically 
and  practically,  is  of  the  prof oundest difficulty.  Every  cause 
may  be  said  to  lead  to  an  infinite  sequence  of  effects. 
Scarcely  an  event  can  occur  that  is  insulated  and  independent. 
Metaphysically  considered,  every  event  is  the  effect  of  some 
cause,  or  combination  of  causes,  and  in  its  turn  becomes  the 
cause  of  ensuing  consequences,  more  or  less  immediate  or 
remote.  But  it  is  evident  that  the  author  of  the  initial  cause 
can  not  be  made  civilly  responsible  for  all  the  effects  in  the 
series.  The  law,  therefore,  having  regard  to  the  rights  and 
duties  of  all  persons,  in  the  ordinary  affairs  of  actual  life,  has 
adopted  the  practical  rule,  of  regarding  only  the  proximate 
cause  of  the  event  that  is  the  subject  of  inquiry.  In  jure, 
causa  proxlma,  non  remota,  spectatur.  But,  as  will  appear, 
there  are  some  apparent  modifications  of  this  rule. 

406.  Proximate  Causes — Breach  of  Contract. — The 
general  rule  is,  that   for  injury  resulting  from  breach  of  con- 

»  Dawe  V.  Morris,  149  Mass.  188,  Bradley  v.  Fuller,  118  Mass.  339 ; 
191  ;  Lamb  v.  Stone,  11  Pick.  527  ;    Scott  v.  Shepherd,  2  W.  Black.  892. 


§406  APPLICATION  OF  PRINCIPLES.  424 

tract  merely,  no  action,  whether  ex  contractu  or  ex  delicto^ 
can  be  maintained,  except  by  those  who  are  parties  or  privies 
to  the  contract.  Thus,  if  A.  sell  B.  a  horse,  knowing  it  is 
to  be  used  in  a  livery,  and  to  be  let  for  hire,  and  warrant  it 
to  be  kind  and  safe,  when  in  fact  it  is  vicious  and  unmanage- 
able, he  would  not  be  liable,  on  his  warranty,  to  one  who 
hired  the  horse  from  B.,  and  who  sustained  injuries  resulting 
from  the  viciousness  of  the  horse.  So,  if  a  smith  shoe  a  horse 
defectively,  in  consequence  of  which  the  horse  falls  and 
injures  one  who  is  riding  it,  and  who  had  procured  it  from 
the  owner  for  that  purpose,  the  smith  is  not  liable  to  the 
person  injured.^  And  where  the  Postmaster  General  made 
a  contract  with  A.  to  provide  a  coach  to  carry  the  mail 
along  a  certain  route,  and  B.,  under  contract  with  A.,  fur- 
nished horses  to  draw  the  coach,  and  employed  C.  to  drive 
them,  and  the  coach,  by  reason  of  its  defective  construction, 
broke  down  and  injured  C,  it  was  held  that  he  had  no  right 
of  action  against  A.,  because  there  was  no  privity  of  con- 
tract between  them.^ 

Where  a  railway  company  furnished  a  crane  for  the  use  of 
its  customers  in  unloading  freight,  which  they  were  bound 
to  unload  at  their  own  expense,  and  a  person  called  in  tem- 
porarily to  assist  a  consignee  in  unloading  freight,  was  killed, 
in  consequence  of  a  defect  in  the  crane  known  to  the  com- 
pany, it  was  held  that  his  personal  representatives  had  no 
right  of  action  against  the  company,  whatever  may  have  been 
its  obligation  to  the  consignee  himself.^  And  where  a  rail- 
way company  contracted  with  the  owner  of  a  quarry  to  fur- 
nish cars  on  his  side-track,  for  the  transportation  of  stone, 
and  an  employe  of  the  quarry-owner  was  injured  by  reason 
of  defective  brakes  on  one  of  the  cars,  it  was  held  that  the 
employe  had  no  right  of  action  against  the  railway  company. 


^  Mayne  on  Dam.  83,  note.    Such  '  Winterbottom  v.  Wright,  10  M. 

cases  rest  upon  both  remoteness  of  &  W.  109. 

injury  and  want  of  privity.     Post,  ^  Blakemore  v.  Bristol  Ry.  Co.,  8 

416.     Cf.   Cameron  v.    Mount,    86  El.  &  BI.  1035. 
Yv^is.   477,   an  interesting  but  un- 
satisfactory case. 


425  DISCOVERING  RIGHT  OF  ACTION.  g  407 

because  the  company  did  not  owe  him  any  duty  under  tlie 
contract,  and  had  no  control  over  him.^ 

407.  Proximate  Causes — Breach  of  Contract,  Contin- 
ued.— Where  the  lessor  of  a  store-room  agreed  with  his  lessee 
to  construct  therein  cornices,  shelvings,  and  fixtures,  in  a 
secure,  safe,  and  proper  manner ;  and  the  fixtures  so  put  up 
were  unsafe  and  insecure  from  want  of  sufficient  fastenings 
to  the  walls  of  the  building,  all  of  which  was  known  to  the 
lessor ;  and  a  customer  of  the  lessee,  while  properly  in  tlie 
room,  was  injured  by  the  falling  of  the  shelvings,  it  was  held 
that  the  customer  had  no  right  of  action  against  the  lessor.* 
This  decision  was  based  upon  the  grounds  (1)  that  the  cus- 
tomer had  no  interest  in  the  contract,  or  in  the  breach  of  it; 
(2)  that  it  did  not  appear  that  there  was  design  on  the  part 
of  the  lessor  to  injure  any  one,  nor  was  there  such  reckless- 
ness as  to  be  the  equivalent  of  such  design ;  and  (3)  that  the 
lessor  could  not  be  held  liable  on  the  ground  that  the  nox- 
ious structure  was  a  nuisance  for  which  he  was  responsible. 

The  reasons  for  refusing  an  action  under  a  contract,  for 
injury  to  one  not  a  party  to  the  contract,  are  thus  stated  in 
two  cases  :  "  If  we  were  to  hold  that  plaintiff  could  sue  in 
such  case,  there  is  no  point  at  which  such  actions  would  stop. 
The  only  safe  rule  is,  to  confine  the  right  to  recover  to  those 
who  enter  into  the  contract ;  if  we  go  one  step  beyond  that, 
there  is  no  reason  why  we  should  not  go  fifty."  ^  And 
again  :  "  The  object  of  parties  inserting  in  their  contracts 
specific  undertakings  ...  is,  to  create  an  obligation  inter 
sese.  These  engagements  and  undertakings  must  neces- 
sarily be  subject  to  modification  and  waiver  by  the  contract- 
ing parties.  If  third  persons  can  acquire  a  right  in  a  con- 
tract, in  the  nature  of  a  duty  to  have  it  performed  as  con- 
tracted for,  the  parties  will  be  deprived  of  control  over  their 

1  Roddy  V.  Mo.  Pac.  Ry.  Co.,  104  Pa.  St.  70.  Cf.  Bailey  v.  Gas  Co., 
Mo.  234.  4  O.  C.  C.  Rep.  471.     Contra,  Cook 

2  Burdick  v.  Cheadle,   26  O.    S.  v.  Dry  Dock  Co. ,  1  Hilton,  436. 
393  ;  Collis  v.  Selden,  3  C.  P.   Law  3  per  Alderson,  B.,  in  Winter- 
Rep.  495  ;  Longmeid  v.  Holliday,  bottom  v.  Wright,  10  M.  &  W.  109, 
6  Exch.  761  ;  Losee  v.  Clute,  51  N.  115. 

Y.  494;  Curtain  v.  Somerset,  140 


§  408  APPLICATION  OF  PRINCIPLES.  426 

own  contracts."  ^  To  these  prudential  reasons,  it  may  be 
added,  that  in  such  cases  there  is  no  causal  connection  between 
the  negligence  complained  of  and  the  injury  sustained.  The 
person  injured  reposed  no  confidence  in  the  person  complained 
of,  and  the  latter  accepted  no  confidence  of  the  former ;  an 
independent  liuman  agency  was  interposed,  the  negligence 
became  the  remote  cause  of  the  injury,  and  there  was  no 
jural  relation  between  the  parties.  A  gas  company,  under 
a  contract  with  the  plaintiff  to  supply  a  service  pipe  from 
their  main  to  the  metre  on  his  premises,  laid  a  defective  pipe, 
from  which  the  gas  escaped.  The  plaintiff  engaged  a  gas- 
fitter  to  lay  pipes  from  the  metre  over  his  premises ;  and  a 
workman,  sent  by  the  gas-fitter  to  do  the  work,  negligently 
took  a  lighted  candle  to  find  where  the  gas  escaped.  An 
explosion  resulted,  and  the  company  was  held  liable  for  the 
injury  to  the  premises. ^  The  gas-fitter  was  regarded  as  an 
independent  workman,  with  whose  negligence  plaintiff  was 
not  chargeable  ;  and  so  the  causal  connection  between  the 
company's  negligence  and  the  plaintiff's  injury  was  unbroken. 
This  is  perhaps  an  extreme  view,  but  it  clearly  distinguishes 
this  case  from  the  preceding  cases. 

408.  PFoximate  Causes— Acts  Wrongful  per  se. — 
But  where  an  act  is  in  itself  unlawful,  the  wrong-doer  is 
liable  to  any  person  sustaining  injury  that  is  the  natural  and 
necessary  result  of  the  wrongful  act.^  In  such  case,  no 
privity  is  requisite,  except  such  as  grows  out  of  the  unlawful 
act.  Where  a  father  purchased  a  gun  for  the  use  of  his  son, 
and  the  seller,  knowing  it  was  to  be  used  by  the  son,  falsely 
warranted  it  to  have  been  made  by  a  particular  maker,  and 
to  be  well  made,  he  was  held  liable  in  tort,  at  the  suit  of  the 
son  who,  while  using  the  gun,  was  injured  by  its  explosion.* 
But  where  B.,  the  owner  of  a  flock  of  sheep,  known  by  him 

^  Per  Depue,  J. ,  in  Marvin  Safe  Vandenburgh    v.    Truax,   4    Den. 

Co.  V.  Ward,  46  N.  J.  L.  19,  24.  464 ;  Scott  v.  Shepard,  2  W.  Black. 

2  Burrows  v.  March,  etc. ,  Gas  Co. ,  892.     Cf.  Guille  v.  Swan,  19  Johns. 

39  L.  J.   Exch.  33  ;  S.  C.  L.  R.  5  381. 

Exch.  67.     Cf.  Lannen  v.  Albany  *  Langridge  v.  Levy,  2  M.  &  W. 

Gas  L.  Co.,  44  N.  Y.  459.  519.     Cf.  Fultz  v.  Wycoff,  25  Ind. 

»  Myers  v.  Malcolm,  6  HiU,  292  ;  321. 


427  DISCOVERING  RIGHT  OF  ACTION.  g403 

to  have  a  contagious  disease,  though  apparently  sound,  by 
falsely  representing  them  to  be  sound,  sold  them  to  A.,  act- 
ing as  the  known  agent  of  C,  who,  as  B.  knew,  intended  to 
mingle  them  with  other  sheep  then  owned  by  C. ;  and  C,  hav- 
ing so  commingled  them,  sold  the  entire  flock  to  A.,  neither 
A.  nor  C.  then  knowing  of  the  disease,  and  A.  suffered 
further  damage  from  tlie  continued  spread  of  the  disease ;  it 
was  held  that  A.  could  not  maintain  an  action  against  B., 
because  the  representations  were  not  made  to  A.  to  induce 
him  to  act  upon  them  in  any  matter  affecting  his  own  inter- 
ests.^ Where  A.  had  agreed  to  bring  certain  animals  for 
sale  and  delivery  to  B.,  at  a  specified  place  ;  and  C,  by 
falsely  representing  to  B.  that  A.  had  abandoned  the  con- 
tract, procured  B.  to  supply  himself  by  purchase  of  like 
animals  from  C. ;  it  was  held  that  A.  had  a  right  of  action 
against  C,  for  his  expenses  and  loss  of  time  in  bringing  the 
animals  to  B.,  and  in  otherwise  disposing  of  them.^ 

Where  A.  wrongfully  threw  a  lighted  squib  into  a  crowd, 
and  it  was  knocked  from  hand  to  hand  until  it  struck  B.  in 
the  face,  and  exploded,  injuring  him,  A.  was  held  liable  to 
B.,  on  the  ground  that  his  act  was  unlawful,  wanton,  and 
dangerous,  and  he  must  be  held  to  have  intended  the  natural 
and  probable  consequences  of  his  voluntary  act.  The  original 
throwing  was  the  direct  cause  of  the  injury,  because  the 
throwing  by  the  intermediate  persons,  in  self-defense,  was 
but  a  continuation  of  A.'s  act.^  One  who  negligently  sets  a 
fire  is  liable,  it  would  seem,  for  all  buildings  destroyed  or 
injured  by  the  same  continuous  conflagration.* 

1  Wells  V.  Cook,  16  0.  S.  67.  Cf.  Ry.  Co.,  49  N.  Y.  420  ;  Penn.  Ry. 
McCracken  v.  West,  17  Ohio,  16.        Co.  v.  Hope,  80  Pa.  St.  373 ;  St.  J., 

2  Benton  v.  Pratt,  2  Wend.  385.       etc.,  Ry.  Co.  v.  Chase,  11  Kan.  47 ; 
8  Scott  V,   Shepherd,   2  W.    Bl.     Atchison,  etc.,  Ry.  Co.  v.  Bales,  16 

892.  Kan.  252  ;' Atchison,  etc.,  Ry.  Co. 
*  Kellogg  V.  Chicago,  etc.,  Ry.  v.  Stanford,  12  Kan.  354;  Anna- 
Co.,  26  Wis.  223;  Hart  V.  Western  polls  Co.  v.  Gantt,  39  Md.  115; 
Ry.  Co.,  13  Met.  99;  Milwaukee,  Scott  v.  Shepherd,  2  W.  Bl.  892; 
etc.,  Ry.  Co.  v.  Kellogg,  94  U.  S.  Cleveland  v.  G.  T.  Ry.  Co.,  42  Vt. 
469;  Higgins  V.  Dewey,  107  Mass.  449;  Field  v.  N.  Y.  C.  Ry.  Co.,  32 
494;  Fent  V.  Toledo,  etc.,  Ry.  Co.,  N.  Y.  339;  Webb  v.  R.  W.  &  O. 
59  III.  349 ;  Webb  v.  Rome,  etc.,  Ry.  Co.,  3  Lans.  453.    Cf.  Ins.  Co. 


g409  APPLICATION  OF  PRINCIPLES.  428 

409.  Proximate   and   Remote    Causes,    Continued.— 

The  law  imposes  upon  one  who  deals  in  articles  that  are 
dangerous  in  their  character  a  duty  to  persons  who  do  not 
deal  directly  with  liira  in  relation  to  such  articles.  The 
public  safety  requires,  and  the  law  demands,  that  he  shall 
see  to  it  that  through  no  negligence  of  his  in  keeping,  hand- 
ling, and  disposing  of  such  articles,  shall  injury  ensue  to 
another ;  and  for  breach  of  this  public  duty,  he  is  liable  in 
damages.  A  druggist,  by  his  servant,  negligently  sold  laud- 
anum, a  deadly  poison,  as  and  for  tincture  of  rhubarb,  a  well- 
known  and  harmless  medicine,  to  one  who  procured  it  for 
the  purpose  of  administering  it,  and  who  did  administer  it, 
to  his  servant,  who  died  from  its  effects  ;  and  it  was  held 
that  the  druggist  was  liable  in  an  action  brought  by  the 
administrator  of  the  deceased  person,  notwithstanding  there 
was  no  privity  of  contract  between  the  decedent  and  the 
druggist.^  A.,  knowing  naphtha  to  be  a  dangerous  explosive, 
sold  some  of  it  to  a  customer,  knowing  that  he  intended  to 
retail  it  to  his  customers  for  illuminating  purposes.  A.'s 
vendee,  ignorant  of  its  explosive  qualities,  sold  some  of  it  to 
B.,  who,  in  like  ignorance,  used  it  in  his  lamp.  It  exploded 
and  injured  B.  and  his  property  ;  and  it  was  held  that  B.  had 
a  right  of  action  against  A.,  although  there  was  no  privity  of 
contract  between  them.^  A  druggist  who  carelessly  labels  a 
deadl}'  poison  as  a  harmless  medicine,  and  sends  it  so  labeled 
into  the  market,  is  liable  to  one  who,  without  fault  on  his 
part,  is  thereby  misled  and  is  injured  by  using  it ;  and  this, 
although  the  medicine  had,  in  this  form,  passed  through 
several  intermediate  agencies.^  In  such  case,  whatever  may 
be  the  circuit  of  events,  the  law  will  look  onl}'-  to  the  corrupt 
beginning,  according  to  the  maxim,  dolus  circuitu  iion  pur- 
gatur.^ 

V.   Tweed,  7  Wall.    44;  Powell  v.  Thomas   v.  Winchester,    6    N.   Y. 

Deveney,   3  Cush.   300  ;  Lynch  v.  397. 

Nurdin,  41  Eng.  C.  L.  422.     Contra,  «  Wellington  v.  Kerosene  Oil  Co., 

Penn.  Ry.  Co.  v.  Kerr,  62  Pa.  St.  104  Mass.  64. 

353  ;  Ryan  v.  N.  Y.  C.  Ry.  Co.,  35  s  Thomas  v.  Winchester,  6  N.  Y. 

N.  Y.  210.  397.     Cf.  Davis  v.  Guarnieri,  45  O. 

i  Norton  v.  Sewell,  106  Mass.  143 ;  S.  492. 

Davis  V.  Quarmeri,  45  O.  S.  470  ;  *  Cooley  on  Torts,  75. 


420  DISCOVERING  RIGHT  OF  ACTION.  §  41 

But  where  an  article  in  itself  harmless,  but  dangerous  • »» 
combination  with  some  other  substance,  is  sold  by  one  who 
does  not  know  that  it  is  to  be  used  in  such  combination,  the 
seller  is  not  liable  to  one  who  purchases  the  article  from  the 
original  vendee,  and  is  injured  while  using  it  in  such  com- 
bination, even  though,  by  mistake  of  the  original  vendor,  the 
article  actually  sold  is  different  from  that  intended  to  be 
sold.i  The  reason  for  such  exemption  from  liability  is,  that 
the  defendant  owed  the  plaintiff  no  duty  imposed  eitlier  by 
contract  or  by  law.  There  was  no  fraud  or  false  representa- 
tion in  the  sale,  and,  the  article  sold  being  in  itself  harmless, 
thei'e  was  no  duty  of  care  or  caution  imposed  upon  the  seller. 

410.  Proximate  and  Remote  Causes,  Continued. — 
Where  the  declaration  alleged  that  the  defendant  negligently 
sold  and  delivered  gunpowder  to  the  plaintiff,  a  boy  eight 
years  old,  known  to  defendant  to  have  no  knowledge  or  ex- 
perience as  to  the  use  of  gunpowder,  and  to  be  an  unfit  person 
to  be  intrusted  with  it,  and  that  the  child  exploded  it  and 
was  thereby  burned,  the  declaration  was  held  good  on  de- 
murrer.2  But  upon  the  trial  of  the  case,  it  appeared  that 
the  boy  had  taken  the  powder  home,  and  had  there  put  it  in 
the  custody  of  his  parents.  After  several  days,  the  boy's 
mother  gave  him  some  of  the  powder,  which  he  exploded 
with  her  knowledge.  This  was  done  a  second  time,  when 
the  injuiy  complained  of  occurred.  It  was  thereupon  held, 
that  there  was  no  right  of  recovery,  because  there  was  no 
necessary  or  natural  connection  between  the  sale  and  the 
injury,  and  the  sale,  though  negligent  and  wrongful,  was  not 
the  proximate  cause  of  the  injury.^  In  other  words,  the 
intervention  of  an  independent  agency  broke  the  causal  con- 


^  Davidson  v.  Nichols,   11  Allen,  produce  injury,  is  responsible  for 

514.  the  natural  and    probable    conse- 

2  Carter  v.  Towne,  98  Mass.  567.  quencesof  his  act  to  any  person  not 

This  holding  was  on  the  ground  himself  in  fault.     The  liability  does 

that  one  who  negligently  uses  a  not  rest  upon  privity  of  contract, 

dangerous  article,  or  causes  or  au-  but  on  the  duty  of  every  one  so  to 

thorizes  its  use  by  another,  under  use  his  own  as  not  to  injure  the 

Buch  circumstances    that    he    has  person  or  the  property  of  another, 

reason  to  know  that  it  is  likely  to  »  Carter  v.  Towne,  103  Mass.  507. 


§411  APPLICATION  OF  PRINCIPLES.  430 

nection,  and  the  wrongful  sale  became  the  remote,  and  hence 
the  irresponsible,  cause  of  the  injury. 

Where  a  horse,  drawing  an  omnibus  in  the  street,  fell  about 
the  middle  of  the  street,  and  in  its  struggles  to  get  up  fell 
repeatedly,  until  it  went  over  a  declivity  at  the  side  of  the 
street,  where  there  was  no  railing,  it  was  held  that  a  passen- 
ger in  the  omnibus  could  not  recover  from  the  city  for  injury 
sustained,  because  the  proximate  and  efficient  cause  of  the 
injury  was  the  fall  of  the  liorse,  and  this  was  not  due  to  the 
negligence  of  the  city  in  not  providing  a  railing.^ 

Where  the  defendant  negligently  left  his  horse  and  cart 
unattended  in  the  street,  and  the  plaintiff,  a  child  seven 
years  old,  got  upon  the  cart  in  play,  and  another  child  in- 
cautiously led  the  horse  on,  and  the  plaintiff  was  thereby 
thrown  down  and  hurt,  the  defendant  was  held  liable.  His 
negligent  act  was  the  proximate  cause,  for  there  was  no  in- 
tervening responsible  agency  to  arrest  causation;  and  the 
concurrence  of  the  natural  indiscretion  of  the  children  with 
the  defendant's  negligence  ought  not  to  relieve  him  from 
liability.'^ 

411.  Proximate  and  Remote  Causes,  Continued. — One 
who  is  placed  in  sudden  peril  by  the  wrongful  act  of  another, 
is  not  chargeable  with  contributory  negligence  by  acting 
erroneously  in  a  reasonable  endeavor  to  extricate  himself. 
Where  a  passenger  in  a  coach,  in  an  accident  for  which  the 
proprietor  was  responsible,  leaped  from  the  coach  and  thereby 
broke  his  arm,  it  was  held,  that  if  the  leaping  from  the  coach 
was,  under  the  circumstances,  a  reasonable  precaution,  the 
proprietor  was  liable,  though  it  turned  out  that  the  passenger 
might  have  retained  his  seat  in  safety.^  The  leaping  was 
the  proximate,  but  not  the  efficient,  cause  of  the  injury. 

1  Herr  v.  Lebanon,  149  Pa.  St.  Ry.  Co.  v.  Paulk,  24  Ga.  356  ;  Wil- 
222.  son  V.  N.  P.  Ry.  Co.,  26  Minn.  278 ; 

2  Lynch  v.  Nurdin,  1  Ad.  &  Ell.  Twomley  v.  C.  P.  N.,  etc.,  Ry.  Co., 
N.  S.  29.  69  N.  Y.  158  ;  Stokes  v.  Saltenstall, 

'  Ingalls  V.  Bills,  9  Met.  1  ;  Jones  13  Pet.  181.     Cf.  McKinney  v.  NeU, 

V.   Boyce,  1   Stark.  493  ;  Frink  v.  1  McLean,  540 ;  Oliver  v.  La  Valle, 

Potter,  17  111.  406  ;  Buel  v.  N.  Y.,  36  Wis.  592  ;  Filer  v.  N.  Y.  C.  Ry. 

etc.,  Ry.  Co.,  31  N.  Y.  314;  S.  W.  Co.,  49  N.  Y.  47.      But  this  rule 


431  DISCOVERING  RIGHT  OF  ACTION.  §412 

Where  one  is  lawfully  driving  on  a  highway,  and  under 
apprehension  of  imminent  peril  by  the  near  approach  of  his 
carriage  to  a  defect  in  the  highway,  leaps  from  his  carriage, 
and  is  thereby  injured,  it  becomes  a  question  of  fact  as  to 
whether,  in  leaping,  he  exercised  reasonable  care  under  all 
the  circumstances.^  If  he  did,  such  act,  though  the  immedi- 
ate cause  of  his  injury,  does  not,  it  seems,  stand  in  the  way 
of  recovery ;  if  he  did  not,  his  negligent  act  contributing  to 
his  injury,  should  prevent  recovery.  But  where,  on  account 
of  a  defect  in  the  highway  which  the  defendant  was  bound 
to  repair,  the  plaintiff  turned  into  adjoining  land,  and  there 
drove  into  a  hole  in  the  bottom  of  a  pond,  and  was  thrown 
from  his  wagon  and  injured,  it  was  held  that  the  defendant 
was  not  liable.  The  proximate  cause  of  the  injury  was  tlie 
hole  in  the  pond,  and  not  the  defect  in  the  highway.  The 
plaintiff  never  reached  the  defect  in  the  highway.  He  avoided 
it,  and  after  he  had  turned  from  the  highway,  and  was  on 
land  which  nobody  was  bound  to  keep  in  safe  condition  for 
travel — when  he  was  using  this  land  at  his  own  peril,  he 
encountered  the  efficient  cause  of  his  injury.^ 

412.  Proximate  and  Remote  Causes,  Continued. — A 
defect  in  the  highway  of  a  city  frightened  a  team  of  horses, 
and  they  ran  away.  After  running  fifty  rods,  they  ran 
against  plaintiff  in  the  highway,  and  injured  him.  Held, 
that  he  could  not  recover  from  the  city  because  there  was  too 
great  a  difference,  both  in  distance  and  in  causation,  to  make 
the  defect  in  the  highway  the  proximate  cause  of  the  injury.^ 

will  not  be  applied  where  the  dan-  ^  Marble  v.  Worcester,  4  Gray, 

gcr  is  only  a  danger  to  property,  395.     In  this  case,  Justice  Thomas, 

and  one  that  has  been  apprehended,  in  a  dissenting  opinion,  says  :  "  In 

or  should  have  been  apprehended  determining  what  is  the  true,  cause 

for  days  prior  to  the  event ;  Brown  of  a  given  result,   where  two  or 

V.  Brooks,  85  Wis.  290  ;  nor  where  more  causes  seem  to  conspire,  the 

the  injured  person,  voluntarily  or  reasonable  inquiry  is,  not  which  is 

negligently,  put  himself  in  a  peril-  the  nearest  in  place  or  time,  but 

ous  position  ;  Berg  v.  Milwaukee,  whether  one  is  not    the  efficient 

83  Wis.  599.  procuring  cause,  and  the  ether  but 

^  Lund  V.  Tyngsboro,    11   Cush.  incidental.      We  are  to  seek  the 

563,  565.  efficient,  predominating  cause,  and 

2  Tisdale  v.  Norton,  8  Met.  388.  not  merely  that  which  was  in  ao 


§413  APPLICATION  OF  PRINCIPLES.  43^ 

But  the  authority  of  this  case  is  weakened,  not  only  by  a 
well  reasoned  dissenting  opinion  therein,  but  by  a  later  case 
in  the  same  court,  wherein  the  defendant  negligently  drove 
his  sled  against  another,  causing  the  horses  attached  thereto 
to  run  away ;  and  in  their  flight,  after  turning  into  another 
street,  they  ran  over  the  plaintiff  and  his  sleigh,  injuring  both. 
The  defendant  was  held  liable ;  the  court  saying :  "  There 
can  be  no  doubt  that  the  negligent  management  of  horses,  in 
the  public  streets  of  a  city,  is  so  far  a  culpable  act  that  any 
party  injured  thereby  is  entitled  to  redress.  Whoever  drives 
a  horse  in  a  thoroughfare,  owes  the  duty  of  due  care  to  the 
community,  or  to  all  persons  whom  his  negligence  may  expose 
to  injury.^ 

Where  a  fair  association  permitted  teams  to  be  driven 
around  the  race-track  after  the  races  were  over,  and  the 
driver  of  a  team  of  young  horses  whipped  them  into  running 
away,  and  they  ran  off  the  track,  and  injured  a  visitor,  it  was 
held,  that  the  injury  was  not  the  direct  or  natural  conse- 
quence of  the  permission  to  use  the  track,  but  was  caused, 
proximately,  by  the  act  of  the  driver,  and  that  the  associa- 
tion was  not  liable -2 

413.  Proximate  and  Remote  Causes,  Continued. — 
Where  the  defendant  had  libeled  a  singer  in  the  plaintiff's 
oratorio,  by  reason  whereof  she  was  deterred  from  singing, 
for  fear  of  being  badly  received,  it  was  held  that  the  damage 
to  the  plaintiff  was  not  sufficiently  connected  with  the  act 
of  the  defendant  to  sustain  the  action ;  and  the  plaintiff's 
loss  was,  as  to  the  defendant,  damnum  absque  injuria.  The 
refusal  to  sing,  it  was  suggested,  might  have  proceeded  from 
groundless  apprehension,  or  from  mere  caprice.^     A  stronger 

tivity  at  the  consummation  of  the  cester,  supra,  in  that  the  last 
accident  or  loss."  This  case  is  per-  named  case  was  to  enforce  a  statu- 
plexingly  near  the  line  between  tory  liability  of  towns  for  injuries 
proximate  and  remote  causes  ;  and  resulting  from  defects  in  high- 
it  shows  how  dim  and  shadowy  the  ways  ;  while  McDonald  v.  Snelling 
region  of  this  dividing  line  may  was  to  enforce  a  common-law 
sometimes  be.  liability. 

1  McDonald  v.  SneUing,  14  Allen,  "  Barton  v.  Agricul.  See. ,  83  Wis. 

290.    In  this  case  it  was  suggested  19. 

that  it  differs  from  Marble  v.  Wor-  ^  Ashley    v.    Harrison,     1     Esp. 


433  DISCOVERING  RIGHT  OF  ACTION.  §414 

case  was  where  the  defendant  so  beat  and  disabled  an  actor 
as  to  prevent  him  from  performing  his  engagement  with  the 
plaintiff ;  and  it  was  held  that  the  resulting  loss  to  the 
plaintiff  was  too  remote  to  give  him  a  right  of  action  against 
the  defendant.^  These  two  cases  came  under  criticism  in  a 
sebsequent  action  in  which  the  manager  of  a  theater  sued  the 
manager  of  a  rival  thpater  for  enticing  and  procuring  a  singer 
to  break  her  engagement  with  plaintiff.  On  demurrer  to  the 
declaration,  the  court  held  that  the  action  was  for  maliciously 
procuring  a  breach  of  contract,  and  sustained  the  action.^ 
Here  was  an  invasion  of  a  legal  right — a  wrongful  interfer- 
ence with  the  plaintiffs  servant ;  and  there  were  both  damnum 
and  injuria.  The  fact  that  the  plaintiff  had  also  a  right  of 
action  against  the  singer  herself  could  not  shield  the  defend- 
ant from  liability. 

Where  one  sustains  a  contract  relation  with  another,  and 
suffers  loss  by  a  third  person's  wrongful  act  with  reference 
to  such  other  party,  he  is  remediless,  unless  such  wrongful 
act  is  willful  and  intended  to  injure  him.  For  example, 
where  one  has  contracted  to  support  all  tlie  paupers  of  a 
town,  in  sickness  and  in  health,  for  a  specified  time,  and  for 
a  specified  price,  he  has  no  right  of  action  against  another 
who  assaults  and  beats  one  of  the  paupers  and  thereby  in- 
creases the  expense  of  supporting  him.^  And  one  who  is,  by 
contract,  entitled  to  the  entire  product  of  a  manufacturing 
company,  has  no  right  of  action  against  a  wrong-doer  who» 
by  trespass,  stops  the  company's  machinery,  and  prevents  it 
from  furnishing  so  much  under  its  contract  as  it  otherwise 
would  have  furnished.^ 

414.  Proximate  and  Remote  Causes,  Continued. — The 
intervening  act  of  an  independent  voluntary  agency  does  not 
arrest  causation  and  relieve  the  first  wrong-doer,  if  the  inter- 
vening act  is  one  that  might  reasonably  be  expected  to  follow. 


48.    Cf.  Grain  v.  Petrie,  6  Hill,  522 ;  2  Lumley  v.  Gye,  2  El.  &  Bl.  216. 

Butler  V.  Kent,  19  John.  223.  »  Anthony  v.  Slaid,  11  Met.  290. 

1  Taylor  v.  Neri,  1  Esp.  386.     On  Cf.  Lumley  v.  Gye,  2  El.  &  Bl.  216. 

the  ground,  it  seems,  that  the  actor  *  Dale  v.  Grant,  34  N.  J.  L.  142. 
was  not  the  plaintiff's  servant. 
28 


§  414  APPLICATION  OF  PRINCIPLES.  434 

Thus,  if  A.  negligently  leaves  his  horse  unhitched  in  a  street, 
and  it  runs  away,  and  as  it  runs  people  rush  toward  it  endeav- 
oring to  stop  it,  and  cause  it  to  turn  from  its  course  and  come 
in  contact  with  the  horse  and  buggy  of  B.,  doing  injury 
thereto,  B.  has  a  right  of  action  against  A.^  And  where  a 
lumber  dealer  negligently  piled  some  timbers  so  near  a  pas- 
sage-way that  the  wheel  of  a  customer's  wagon  casually  caught 
a  projecting  timber  and  threw  the  whole  pile  upon  another 
customer,  and  injured  him,  the  negligence  of  the  lumber 
dealer  was  held  to  be  the  proximate  cause  of  the  injury .^ 
In  such  cases,  while  the  injury  would  not  have  ensued,  but 
for  the  intervening  act,  the  intervening  act  is  one  that  might 
reasonably  be  expected  to  follow  from  the  negligence,  and 
hence  does  not  arrest  causation ;  and  the  negligence  is  the 
efficient  cause  of  the  injury.  But  if  the  intervening  act  is 
one  not  likely  to  follow  the  original  negligence,  it  will,  in 
general,  be  regarded  as  the  proximate  cause  of  the  injury. 
Where  the  defendant  contracted  to  tow  plaintiff's  barge  and 
cargo,  by  means  of  a  steam-tug,  from  Bay  City,  Michigan,  to 
Buffalo,  New  York,  and  voluntarily  and  needlessly  delayed 
during  the  voyage,  so  that  after  the  delay,  the  barge  and 
cargo  were  lost  in  a  storm  that  would  not  have  been  encoun- 
tered but  for  the  delay,  it  was  held  that  the  defendant  was 
not  liable.  This  was  on  the  ground  that  the  loss  by  storm 
was  not  a  consequence  of  the  delay  in  such  sense  as  to  give 
the  two  events  any  natural  or  necessary  connection.  At  the 
time  of  the  delay,  it  was  no  more  likely  that  it  would  im- 
peril the  barge,  than  that  it  would  avoid  peril ;  in  fact,  if 
the  delay  had  been  prolonged,  and  the  default  of  the  defend- 
ant therefore  greater,  the  peril  would  have  been  avoided. 
The  storm  was  the  proximate,  and  the  delay  the  remote 
cause  of  the  loss.^ 

*  Griggs  V.  Fleckenstein,  14  Minn.  532  ;  Carter  v.  Towne,   103  Mass. 

81  ;  Scott  V.  Shepherd,  2  W.  Black.  507  ;  Proctor  v.  Jennings,  6  Nev. 

892.     Cf.  Lynch  v.  Nurdin,  1  Ad.  83  ;  Tutein  v.  Hurley,  98  Mass,  211. 

&  Ell.  N.  S.  29.  Cf.  Parker  v.  Cohoes,  10  Hun,  531  ; 

2  Pastene  v.  Adams,  49  Cal.  87  ;  Clark  v.  Chambers,  3  Q.  B.   Div. 

Powell  V.  Deveney,  3  Cush.  300.  327  ;  Doggett  v.  Richmond,  etc., 

«  Daniels  v.  Ballantine,  23  O.  S.  Ry.  Co.,  78  N.  C.  305. 


435  DISCOVERING  RIGHT  OF  ACTION.  g41o 

From  the  foregoing  authorities  it  will  be  seen  that  the  in- 
tervention of  acts  and  events  between  the  wrongful  cause 
and  the  injurious  consequence  does  not  necessarily  avoid 
liability.  "  The  test  is  to  be  found,  not  in  the  number  of 
intervening  events  or  agents,  but  in  their  character,  and  in 
the  natural  and  probable  connection  between  the  wrong  done 
and  the  injurious  consequence.  So  long  as  it  afifirmatively 
appears  that  the  mischief  is  attributable  to  the  negligence, 
as  a  result  that  might  reasonably  have  been  foreseen  as  prob- 
able, the  legal  liability  continues."  ^  Even  the  act  of  the  in- 
jured pereon  may  be  the  more  immediate  cause  of  his  injury, 
but  if  reasonably  induced  by  the  prior  misconduct  of  the  de- 
fendant, and  without  fault  of  the  plaintiff,  the  act  of  the 
defendant  remains  the  efficient  and  responsible  cause.  But 
where  the  act  complained  of  causes  injury  only  by  reason  of 
the  intervention  of  unusual,  extraordinary,  and  predominating 
circumstances,  there  can,  in  general,  be  no  liability .^ 

IV.   PRIVITY  AS   AN  ELEMENT   OF   RIGHTS   OF     ACTION. 

415.  The  Doctrine  of  Privity  in  Procedure. — The  term 
privity  denotes,  in  general,  mutual  or  successive  relationship 
to  the  same  rights  of  property ;  and  privies  are  distributed 
into  several  classes,  according  to  the  manner  of  this  relation- 
ship. There  are  privies  in  estate,  as  donor  and  donee^  lessor 
and  lessee  ;  privies  in  blood,  as  ancestor  and  heir;  privies  in 
representation,  as  testator  and  executor ;  privies  in  law, 
where  the  law,  without  privity  of  blood  or  estate,  casts  prop- 
erty upon  another,  as  by  escheat ;  privies  in  respect  to  con- 
tract ;  and  privies  on  account  of  estate  and  contract  together. 
Privity  of  contract  is  the  jural  relation  which  subsists  between 
two  contracting  parties.  A  lessee,  from  the  nature  of  his 
covenants,  is  related  to  his  lessor  by  both  privity  of  contract 
and  privity  of  estate.     He  may,  by  assignment,  destroy  his 

*  Per  Foster,  J.,  in  McDonald  v.  ages,  sec,  51-84  ;  1  Suth.  on  Dam, 

Snelling,  14  Allen,  292,  296.  pp.  21-74  ;  Weeks'  Dam.  Abs.  Inj., 

'  For   further  treatment  of  the  passim ;    2   Thomp.   on  Neg.   ppi 

subject  of  proximate  and  remote  1063-1101. 
causes,  see  Wood's  Mayne  on  Dam- 


^§416-417  APPUCATION  OF  PRINCPLES.  435 

privity  of  estate,  leaving  the  privity  of  contract  subsisting  ; 
for  he  would  remain  liable  on  his  covenants,  notwithstanding 
the  assignment  of  his  lease. 

In  procedure,  the  term  privity  has  a  threefold  application. 
(l)The  admissions  of  one  person  may  be  competent  evidence 
against  another  who  stands  in  privity  with  him,  on  the  ground 
that  the  two  are  identified  in  interest ;  (2)  one  may  be 
estopped  by  that  which  bound  him  to  whom  lie  is  privy ; 
and  (3)  one  may  acquire  a  right,  or  incur  an  obligation,  by 
privity  with  another.^ 

416.  Privity  of  Contract — When  Necessary. — It  was 
a  rule  of  the  common  law  that  before  one  may  complain  of 
another  for  breach  of  contract,  there  must  be  some  direct  con- 
tractual relation,  or  privity,  between  them  ;  and  this,  with 
only  a  few  exceptions,  is  a  requirement  of  the  law  to-day. 

If  A.  sell  to  B.  a  horse  to  be  used  in  a  livery,  and  let  for 
hire,  and  warrant  it  to  be  gentle,  kind,  and  steady,  when  in 
fact  it  is  vicious  and  unmanageable,  A.  would  be  liable  to  B. 
for  damages  sustained  by  him  because  of  the  viciousness  of 
the  horse  ;  ^  but  he  would  not  be  liable  to  C.,  who  hired  the 
horse  from  B.  and  was  injured  because  of  its  viciousness,  for 
there  would  be  no  privity  between  A.  and  C.  So,  likewise,  if 
a  blacksmith  shoe  a  horse  defectively,  in  consequence  of 
which  the  horse  falls  and  injures  its  rider,  who  procured  it 
from  the  owner,  the  smith  is  not  liable  for  the  injury,  because 
there  is  no  privity  between  him  and  the  injured  person,  and 
he  owed  him  no  duty,  private  or  public,  in  the  premises. 
The  general  rule  is,  that  where  injury  results  from  a  breach 
of  contract  merely,  no  action,  whether  ex  contractu  or  ex 
delicto^  can  be  maintained,  except  by  those  who  are  privy  to 
the  contract.  In  the  cases  just  supposed  there  is  no  right  ex 
contractu^  for  want  of  privity,  and  there  is  no  right  ex  delicto^ 
because  the  injury  is  too  remote.^ 

417.  Privity  of  Contract — When  not  Necessary. — 
Where  one  makes  a  fal"'*.  and  fraudulent  representation  to 

1  Ante,  326.  »  Ante,  406. 

2  C/.  Cameron  v.  Mount,  86  Wis. 
477. 


437  DISCOVERING  RIGHT  OF  ACTION.  §417 

another,  with  the  knowledge  and  intent  that  it  is  to  be  acted 
upon  by  a  third  person,  he  is  liable  to  such  third  person,  who 
acts  upon  the  representation  and  is  injured,  if  the  injury  be 
the  immediate  and  not  the  remote  consequence  of  such 
representation. 

In  all  cases  where  an  act  is  itself  unlawful,  the  doer  of  it 
is  liable  to  any  person  sustaining  injury  therefrom,  as  a 
natural  and  necessary  result  thereof.  In  such  case,  no  priv- 
ity is  necessary  to  the  maintenance  of  the  action. 

Wliere  a  dealer  in  drugs  and  medicines  carelessly  labels  a 
deadly  poison  as  a  harmless  medicine,  and  sends  it  so  labeled 
into  tlie  market,  he  is  liable  to  all  persons,  who,  without 
fault  on  their  part,  are  injured  by  using  it  as  such  medicine, 
in  consequence  of  the  false  label.^  The  liability  of  the  dealer 
in  such  case  arises,  not  out  of  any  contract  or  direct  privity 
between  the  dealer  and  the  person  injured,  but  out  of  the 
duty  which  the  law  imposes  upon  him  to  avoid  acts  in  their 
nature  dangerous  to  the  lives  of  others.  He  is  liable,  there- 
fore, though  tlie  poisonous  drug  with  such  label  may  have 
passed  through  many  intermediate  sales  before  it  reached 
the  hands  of  the  person  injured.  There  is  a  maxim  that 
*'  fraud  is  not  purged  by  circuity  ; "  and  this  is  true  of  any 
wrongful  act  whose  influence  must  naturally,  and  without 
the  interposition  of  any  extraordinary  event,  produce  injury 
to  some  one  ;  and  it  matters  not  in  such  case  what  may  be 
the  circuit  of  intervening  ordinary  events.^  But  the  courts 
have  been  careful  to  restrict  the  application  of  this  rule 
within  safe  and  reasonable  limits.  Its  application  to  one  who 
deals  in  deadly  poisons,  is  upon  the  ground  that  he  owes  a 
duty  to  persons  who  do  not  deal  directly  with  him.  The 
public  safety  against  fatal  consequences  from  negligence  in 
keeping  and  disposing  of  such  articles  is  a  consideration  to 
which  no  dealer  may  safely  close  his  eyes.  An  imperative 
social  duty  requires  him  to  use  such  precautions  as  will  be 
likely  to   avoid   injury  to  those  who  may,  in  the   ordinary 


1  Thomas  v.  Winchester,  6  N.  Y.        «  Cooley  on  Torts,  75. 
397. 


§^5  418-419  APPLICATION  OF  PRINCIPLES.  45S 

course  of  events,  be  exposed  to  the  dangers  incident  to  the 
traffic  in  poisonous  drugs. ^ 

418.  Assignment,  and  Tort,  Create  no  Priyity. — At 

common  law,  third  persons  could  not,  as  a  rule,  become  en- 
titled, by  the  contract  itself,  to  demand  the  performance  of 
any  duty  under  the  contract ;  though  they  might,  by  repre- 
sentation, or  by  assignment,  become  entitled  to  exercise  the 
rights  of  a  party  thereto.  But  at  common  law  the  benefit  of 
a  contract  could  not  be  so  assigned  as  to  enable  the  assignee 
to  sue  thereon  in  his  own  name ;  and  the  principal  reason 
was,  the  want  of  privity  between  the  assignee  and  the  obligor. 
Under  the  new  procedure,  an  action  is  to  be  prosecuted  in 
the  name  of  the  real  party  in  interest ;  and  the  assignee  of  a 
chose  in  action  may  sue  thereon  in  his  own  name,  notwith- 
standing the  want  of  privity. 

As  between  the  acceptor  of  a  bill  of  exchange,  or  the 
maker  of  a  promissory  note,  and  an  indorsee  thereof,  there  is 
privity  created  by  the  terms  of  the  contract,  although  the 
indorsee  is  not  named  therein.  The  rights  of  an  acceptor 
supra  protest  rest  upon  other  ground.^ 

The  jural  relation  between  a  tort  feasor  and  the  injured 
party  is  not  that  of  privity.  Most  torts  are  independent  of 
contract ;  and  torts  arising  out  of  contract  do  not  arise  from 
express  provisions  thereof,  but  from  the  breach  of  an  implied 
duty  arising  out  of,  and  incident  to,  the  contract.  Thus,  a 
surgeon  is  liable  in  tort  for  negligence  in  the  performance 
of  an  express  contract  for  skilled  services  ;  negligence  in 
such  case  being  a  breach  of  the  implied  duty  to  exercise 
reasonable  care  and  skill  in  the  performance  of  his  con- 
tract.3 

419.  Fiction  of  a  Promise,  to  Adapt  Certain  Reme- 
dial Riglits  to  Assumpsit. — At  an  early  period  of  proced- 
ure,   recovery  was  denied  in    some  instances,  because,  for 

1  Owen,  C.  J.,  in  Davis  v.  Guar-  »  1  ^^d.  on  Torts  (Wood's  Ed.), 

nieri,  45  O.  S.  470.     For  cases  illus-  27,  note ;  Emigh  v.    Ft.  W.  &  C. 

trating  this  doctrine,  see  ante,  409,  Ry.  Co.,  4  Biss.  114.     Cf.  Pa.  Ry. 

410.  Co.  V.  Peoples,  31  O.  S.  537,  543. 

3  Byles  on  bills,  271 ;  1  Dan.  Neg. 
Inatr.  526. 


439  DISCOVERING  RIGHT  OF  ACTION.  j;<iiu 

want  of  privity  between  the  parties,  there  was  no  form  of 
action  applicable  to  the  case.  In  the  course  of  time,  how- 
ever, the  action  of  assumpsit  was  applied  to  some  such  cases, 
by  su[)eradding  to  tlie  operative  facts  the  fiction  of  animj)lied 
promise  to  pay.  The  addition  of  this  fictitious  promise 
supplied  the  element  of  privity,  and  brought  such  cases 
formally  within  the  operation  of  assumpsit.^  The  common 
counts,  or  "  money  counts,"  as  they  are  sometimes  called, 
were  employed  for  this  purpose.  In  cases  where  money  liad 
been  paid  to  the  wrong  person  by  mistake,  or  where  one  had, 
by  duress  or  fraud,  obtained  the  money  of  another,  the  person 
in  justice  and  equity  entitled  to  the  money  could  recover  it 
in  an  action  of  indebitatus  assumpsit  for  money  had  and 
received.  In  such  action,  the  plaintiff  alleged  that  on  a 
certain  day  the  defendant  "  was  indebted  to  the  plaintiff  in 
the  sum  of  dollars,  for  so  much  money  by  the  defend- 

ant before  that  time  had  and  received,  to  and  for  the  use  of 
'he  said  plaintiff;  and,  being  so  indebted,  he,  in  consideration 
uhereof,  afterward,  to  wit,  on  the  day  and  year  aforesaid, 
undertook  and  faithfully  promised  the  said  plaintiff  to  pay 
him  the  said  sum,"  etc.^ 

This  action  was  in  this  way  extended  to  cases  where  one 
has  tortiously  obtained  another's  property  and  converted  it 
into  money.  In  such  case,  the  owner  is  allowed,  if  title  to 
real  estate  is  not  involved,^  to  waive  the  tort,  and  sue  for 
money  had  and  received ;  *  and  in  some  jurisdictions,  he  is 
allowed  to  waive  the  tort  and  sue  for  the  value  of  the  prop- 

1  Ante,  95,  326  ;  Steph.  PI.  53,  54.  201  ;  Gilmore  v.  WUbur,  12  Pick. 

2  Steph.  PI.  86,  in  nota,  and  120.  120  ;    Knapp  v.    Hobbs,  50  N.  H. 

3  King  V.  Mason,  42  111.  223 ;  476  ;  Budd  v.  Hiler,  3  Dutch.  43 ; 
Pickman  v.  Trinity  Ch. ,  123  Mass.  Comstock  v.  Hier,  73  N.  Y.  269  ; 
1  (semble).  Olive  v.  OHve,  95  N.  C.  485  ;  Hall 

«  Huffman  v.  Hughlett,  11  Lea,  v.  Peckham,  8R.  1.  370  ;  Thompson 

549;    Lamine    v.    Dorrell,    2    Ld.  v.  Thompson,  5  W.  Va.  190 ;  Long- 

Raym.  1216  ;  Young  v.  Marshall,  8  champ  v.    Kenny,    1    Doug.    137  ; 

Bing.   43  ;  Powell  v.  Rees,  7  A.  &  Hill  v.  Perrott,  3  Taun.  274.     Cf. 

E.   426 ;  Thornton   v.   Strauss,    79  Hambly     v.     Trott,     Cowp,     371 ; 

Ala.   164 ;  Hudson  v.  Gilliland,  25  Lightly  v.  Clouston,  1  Taun.  112 ; 

Avk.    100  :  Staat  v.  Evans,  35  111.  Foster  v.  Stewart,  3  Mau.   &  Sel. 

455  ;  Leighton  v.  Preston,  9  Gill.  191. 


g  420  APPLICATION  OF  PRINCIPLES.  4i(.» 

erty,  as  for  money  had  and  received  to  and  for  his  use,  whea 
there  has  not  been  a  sale  by  the  tort  feasor.^ 

Thus,  by  arbitrary  substitution  of  a  promise  to  pay,  the 
element  of  privity,  indispensable  in  the  common-law  action 
of  assumpsit,  was  supplied,  and  a  remedial  form  based  upon 
privity  of  contract,  was  applied  to  a  jural  relation  entirely 
wanting  such  privity.  In  such  relations,  the  primary  right 
arises  ex  lege,  and  not  ex  contractu;  and  under  the  modern 
procedure  there  is  no  occasion  for  the  fiction  of  a  promise, 
which  was  formerly  used  to  supply  the  element  of  privity, 
and  thus  adapt  the  case  to  the  formal  requirements  of 
assumpsit.  The  right  of  action  does  not,  and  never  did.  rest 
upon  the  fact  or  fiction  of  privity.  It  is  enough  that  the 
defendant  has  that  which,  ex  cequo  et  bono,  belongs  to  the 
plaintiff,  and  which  it  is  against  conscience  for  the  defend- 
ant to  keep.2 

420.  Action  by  Stranger  for  whose  Benefit  Contract 
Made. — The  right  to  sue  without  privity  has  been  carried  a 
step  further,  and  it  has  been  held  generally  that  where  a 
promise  is  made,  on  a  valid  consideration,  to  one  for  the  ben- 
efit of  another,  he  for  whose  benefit  it  is  made,  being  the  real 
party  in  interest,  may  bring  an  action  against  the  promisor 
for  its  breach.^     Thus,  where  A.  loaned  money  to  B.,  upon 

1  Steph.  PI.  54  ;  Russell  v.  Bell,  Wetherald,  5  Harr.  38  ;  Andr.  Co. 
10  M.  &  W.  340 ;  Lehmann  v.  v.  Metcalf ,  65  Me.  40 ;  Jones  v. 
Schmidt,  87  Cal.  15 ;  Newton  Mfg.  Hoar,  5  Pick.  285  ;  Sandeen  v,  Ry. 
Co.  V.  White,  53  Q^a.  395  ;  Ry.  Co.  Co.,  79  Mo.  278  ;  Smith  v.  Smith, 
V.  Chew,  67  111.  378  ;  Morford  v.  43  N.  H.  536  ;  Bethlehem  Bor.  v. 
White,  53  Ind.  547  ;  Fanson  v.  Ins.  Co.,  81  Pa.  St.  445;  Schweizer 
Linsley,  20  Kan.  235  ;  Aldine  Mfg.  v.  Weiber.  6  Rich.  L.  159  ;  Win- 
Co.  V.  Barnard,  84  Mich.  632 ;  chell  v.  Noyes,  23  Vt.  303.  On 
Evans  v.  Miller,  58  Miss.  120  ;  principle  it  would  seem  that  such 
Goodwin  v.  Girffis,  88  N.  Y.  629 ;  action  should  be  maintainable,  for 
Logan  V,  Wallis,  76  N.  C.  416  ;  there  is  both  loss  to  the  plaintiff 
Kirkman  v.  Philips,  7  Heisk.  222  ;  and  enrichment  of  the  defendant. 
Ferrill  v.  Mooney,  33  Tex.  219  ;  Keener's  Quasi-Contracts,  160-165, 
Walker  v.   Duncan,  68  Wis.  624.  192. 

Cf.    McDonald  v.  Peacemaker,    5  2  Ella  v.  A.  M.  U.   Express  Co., 

W.  Va.  439.     Contra,  Strother  v.  29  Wis.  611  ;  Buel  v.   Boughton,  2 

Butler,    17  Ala.    733  ;  Bowman  v.  Den.  91. 

Browning,  17  Ark.  599  ;  Hutton  v.  a  Steph.  PI.  32  ;  Davis  v.  Callo- 


441  DISCOVERING  RIGHT  OF  ACTION.  §  420 

his  promise  to  pay  it  to  C,  to  whom  A.  was  indebted,  it  was 
held  that  C.  could  recover  the  money  from  B.^  And  where 
a  conveyance  of  land  recited  that,  as  part  of  the  purchase- 
price,  the  grantee  assumed  payment  of  an  existing  mortgage 
upon  the  land,  it  was  held  that  the  mortgagee  might  main- 
tain a  personal  action  against  the  grantee.^  Where  a  railway 
company  contracted  with  an  express  company  to  carry  its  ex- 
press matter  and  its  express  messengers,  it  was  held,  that  a 
messenger  who  was  injured  by  the  negligence  of  the  railway 
company,  might  maintain  an  action  upon  the  contract,  which 
was  regarded  as  made  for  his  benefit.^ 

Under  some  circumstances,  the  agreement  to  pay  to  a  third 
party  will  be  implied  as  a  fact.  As,  where  a  debtor  remitted 
money  to  his  creditor,  with  directions  to  pay  a  certain  sum 
to  a  third  party,  and  apply  the  residue  upon  his  own  claim, 
and  he  to  whom  the  money  was  sent  kept  all  of  it,  he  was 
held  liable  to  the  third  party,  on  the  ground  that  by  the  re- 
ceipt of  the  money  without  objection  to  the  directions,  he  had 
assented  to  and  assumed  the  obligation  therewith  imposed.* 
So,  if  a  testator  charge  his  devisee  with  the  payment  of  debts 
and  legacies,  the  devisee,  if  he  accepts  the  gift,  takes  it 
charged  with  the  duty,  and  is  liable  for  such  debts  or  lega- 
cies, in  an  action  by  the  creditor  or  legatee,'^  on  his  implied 
undertaking  to  pay. 

way,  30  Ind.   112 ;   Miller  v.  Bill-  a  Burr  v.  Beers.   24  N.   Y.  257. 

ingsly,  41  Ind.  489  ;  Devol  v.  Mc-  This  was  put  upon  the  ground  that 

In  tosh,    23    Ind.   529  ;    Dunlap  v.  the  grantee's  undertaking  was   a 

McNeil,  35  Ind.  316  ;    Durham  v.  collateral  security  acquired  by  the 

Bischof,   47    Ind.    211;    Meyer  v.  mortgagor,  and  inured  by  equitable 

LoweU,  44  Mo.  328  ;  Rogers  v.  Gos-  subrogation  to  the  benefit  of  the 

nell,  51  Mo.  466  ;  Cress  v.  Blodgett,  mortgagee.     Brewer  v.  Maurer,  38 

64  Mo.  449  ;  Cubberly  v.  Cubberly,  O.  S.  543.     Cf.  Giflford  v.  Corrigan, 

33  N.   J.    Eq.    82,    591  ;   Coster  v.  117  N.  Y.  257  ;  Per  Peckham,  J., 

Mayor,  43  N.  Y.  399  ;  Van  Schiack  in  Townsend  v.  Rackham,  143  N, 

V.  Ry.  Co. ,  38  N.  Y.  346  ;  Thurman,  Y.  516. 

C.  J.,  in  Thompson  v.  Thompson,  s  u.  P.  Ry.  Co.  v.  Kelly,  35  Pac. 

4  O.  S.  333  ;   Emmitt  v.  Brophy,  Rep.  923. 

42  O.  S.  82 ;    Rice  v.    Savery,  22  *  Hall  v.  Marston,  17  Mass.  575  ; 

Iowa,  470.     Contra,  Butterfield  v.  Carnegie  v.  Morrison,  2  Met.  381  ; 

Hartshorn,  7  N.  H.  345  ;  Mellen  v.  Brewer  v.  Dyer,  7  Cush.  337. 

Whipple,  1  Gray,  317.  5  Gridley  v.    Gridley,   24  N.   Y. 

1  Lawrence  v.  Fox,  20  N.  Y.  268,  130  ;  McLachlan  v.  McLachlan,  9 


§  421  APPLICATION  OF  PRINCIPLES.  442 

There  is  a  tendenc}^  in  the  later  decisions  to  limit  the  ap- 
plication of  the  foregoing  rule  to  cases  where  there  is  a  lia- 
bility of  the  promisee  to  him  for  whose  benefit  the  promise  is 
made.  The  owner  of  a  farm  conveyed  it  to  his  wife,  in  con- 
sideration of  her  promise  that  after  his  death  she  would  pay 
a  certain  sum  to  a  third  person,  to  whom  the  grantor  was  at 
no  time  indebted.  She  died  without  having  paid  any  part  of 
the  amount,  and  in  an  action  by  the  third  person  against  her 
administratrix,  it  was  held  that  he  could  not  recover,  because 
there  was  no  liability  of  the  husband  to  the  plaintiff. ^  Such 
distinction  would  seem  to  rest  upon  the  principle  that  a 
promise  can  not  be  enforced  by  one  as  to  whom  it  is  a  mere 
gratuity. 

421.  One  can  not  be  Made  a  Debtor  by  Contract 
against  his  Will. — There  is  a  well-defined  distinction  be- 
tween making  a  promisor  liable  to  some  one  other  than  his 
promisee,  and  making  one  liable  for  that  which  he  never 
promised  to  any  person.  The  instances  of  contractual  obli- 
gation in  which  one  may  be  made  to  pay  to  a  third  person, 
are  cases  in  which  he  had  voluntarily  assumed  the  particular 
obligation.  The  instances  are  numerous  in  which  one  may 
become  liable  quasi  ex  contractu  ;  that  is,  he  may  incur  an 
obligation  that  may  be  enforced  as  if  it  had  a  contractual  ori- 
gin ;  but  one  can  not  be  made  a  debtor  hy  contract^  unless  he 
consents,  voluntarily  or  impliedly,  to  the  liability;  though 
when  he  has  incurred  such  liability,  it  may  sometimes  be  en- 
forced by  persons  other  than  the  promisee.  Every  one  has 
the  right  to  determine  with  whom  he  will  contract ;  though 
he  may  not  have  like  control  as  to  who  may  enforce  his  con- 
tractual obligation.  One  can  not  be  made  liable  for  work 
done  for  him,  unless  done  at  his  request,  or  under  circum- 
stances from  which  the  law  is  said  to  imply  a  promise  to  pay 
for  it.  In  an  action  to  recover  for  ice  delivered  to  the  de- 
Paige,  534 ;  Lord  v.  Lord,  22  Conn.  516  ;  Linneman  v.  Moross,  98  Mich. 
595 ;  Olmstead  v.  Brush,  27  Conn.  178  ;  s.  C.  39  Am.  St.  Rep.  528.  and 
530.  note;  Jefiferson  v.  Asch,  53  Minn. 

1  Coleman  v.  Hiler,  85  Hun,  547  ;  446.  Cf.  1  Eng.  Ruling  Cases,  705 
Townsend  v.  Rackham,  143  N.  Y.    and  notes  ;  13  Albany  L.  J.  362. 


443  DISCOVERING  RIGHT  OF  ACTION.  §422 

fendant,  it  appeared  that  the  defendant  had  expressly  refused 
to  take  ice  from  the  phiintiff,  and  had  supposed  the  delivery 
to  be  by  another  company ;  and  it  was  held  that  there  was  no 
right  of  recovery,  because  the  defendant  had  not  consented 
to  the  liability  sought  to  be  imposed,^  and  there  could  be  no 
other  ground  upon  which  to  rest  a  liability.  Where  an  order 
for  goods  is  sent  to  a  dealer,  and  one  who  had  bought  out  the 
dealer  fills  the  order,  without  giving  the  purchaser  notice  of 
the  change,  there  is,  it  seems,  no  right  of  recovery .^  An 
agreement  to  purchase  goods  from  a  manufacturer,  implies 
that  they  are  to  be  of  his  manufacture,  and  does  not  author- 
ize him  to  fill  an  order  with  goods  made  by  others,  though  of 
the  same  quality.^ 

The  liability  of  husband  or  father,  for  necessaries  furnished 
to  wife  or  child,  would  seem  to  be  an  exception  to  the  rule 
just  stated ;  for  such  liability  may  arise  when  the  necessaries 
are  furnished  not  only  without  his  knowledge,  but  against  his 
command.  But  this  liability  does  not  originate  in  contract. 
It  is  true  that  the  civil  law  treated  such  liability  as  arising 
quasi  ex  contractu^  and  the  common  law,  to  adapt  it  to  the 
action  of  assumpsit,  superadded  the  fiction  of  an  implied 
promise ;  but  strictly,  such  liability  arises  ex  lege^  and  is 
based  upon  the  legal  obligation  to  support,  which  belongs  to 
those  relations.* 

422.  Privity  between  Landlord  and  Tenant. — As  be- 
tween lessor  and  lessee,  there  is  privity,  both  of  estate  and  of 
contract ;  and  the  assignee  of  a  term  comes  into  such  relation 
with  the  lessor  as  to  give  rise  to  privity  of  estate  between 
them ;  and  the  same  is  true  as  to  the  lessee  and  the  grantee 


J  Boston  Ice  Co.   v.  Potter,   123  sumed  them  after  notice  as  to  who 

Mass.  28.  furnished  them,  would  he  not  be 

2  Boulton  V.  Jones,  2  H.  &  N.  liable  ?    Cf.  Devlin  v.  Mayor,  63  N. 

Exch.  564 ;    27  L.   J.    R.    117.     In  Y.    8 ;  Coleman  v.  Wooley,  10  B. 

this  case,  the  defendant  had  a  set-  Mon.  320. 

off  against  the  person  from  whom  ^  Johnson    v.    Raylton,   7  Q.    B. 

he  ordered,  and  the  goods  had  been  Div.  438  ;  Cunningham  v.  Judson, 

consumed     before    the    defendant  30  Hun,  63. 

knew  the  plaintiff  furnished  them.  *  Keener  on  Quasi-Contracts,  23, 

Sed  quaere:  If  the  recipient  con-  23. 


§422  APPLICATION  OF  PEINCIPLES.  -144 

of  the  reversion.^  Even  where  the  lease  contains  a  covenant 
against  assignment,  an  assignee,  if  he  enter  and  enjoy  the 
premises,  will  stand  in  privity  with  the  lessor;  for  such  cove- 
nant being  for  the  benefit  of  the  lessor,  he  may  waive  it  and 
treat  the  assignment  as  valid.^  But  the  privity  of  contract, 
being  a  personal  privity,  extends  only  to  the  persons  of  the 
lessor  and  the  lessee.^  And  if  the  lessee  underlet, — that  is, 
sublease  the  premises  for  part  of  the  term, — no  privity  be- 
tween the  original  lessor  and  the  sublessee  is  created  there- 
by.^ The  sublessee  takes  part  of  the  lessee's  estate,  and  not 
part  of  the  original  lessor's.  In  such  cases,  both  of  assign- 
ment and  of  subletting,  the  contract  liability  of  the  original 
lessee  remains,  and  he  may  be  sued  for  the  rent.  In  case  of 
assignment,  both  the  lessee  and  the  assignee  are  liable, — the 
former  on  his  contract,  and  the  latter  because  of  privity  of 
estate, — and  the  lessor  may  pursue  either  or  both,  at  his  elec- 
tion ;  ^  though  he  can  have,  of  course,  but  one  satisfaction. 

As  between  the  owner  of  premises  and  one  who  wrongfully 
enters  and  occupies  adversely,  there  is  no  privity,  either  of 
estate  or  of  contract ;  the  relation  of  landlord  and  tenant 
does  not  exist,  no  liability  as  upon  contract  is  created  by  law, 
and  the  owner  can  not  recover  rent  as  for  use  and  occupation.^ 
An  additional  reason  for  this  is,  that  at  common  law,  the  ac- 
tion to  enforce  a  quasi  contractual  obligation  was  assumpsit, 


1  Taylor's    Landlord    &  Tenant,  Stringf ellow  v.  Curry,  76  Ala.  394  ; 
436.  Stockett  v.  Watkins,  2  G.  &  J.  326  ; 

2  Blake    v.   Sanderson,    1    Gray,  Central  Mills  Co.  v.  Hart,  124  Mass. 
332.  123;    Lockwood  v.   Thunder  Bay 

sSutliffv.  Atwood,  15  O.  S.  186,  Co.,   42  Mich.    536;  Henderson  v. 

194  ;  Tay.  L.  &  T.  436.  Detroit,   61   Mich.  378 ;  Crosby  v. 

*  Holford  V.  Hatch,  1  Doug.  183.  Home  Co.,  45  Minn.  249  ;  Bank  v. 

And  it  is  held,  that  where  the  lessee  AuU,  80  Mo.  199  ;  Dixon  v.  Ahern, 

leases  a  part  of  the  premises  for  the  19  Nev.   422  ;  Preston  v.  Hawley, 

whole  time,  this  also  is  a  subletting,  101  N.  Y.  586  ;  CoUyer  v.  CoUyer, 

and  not  an  assignment.     Fulton  v.  113  N.  Y.  442  ;  Smith  v.  Stewart,  6 

Stuart,  2  Ohio,  216.     Contra,  Cox  Johns.  46.     Cf.  Little  v.  Martin,  3 

V.  Fenwick,  4  Bibb.  (Ky.)  538.  Wend.  219  ;  Smith  v.  Wooding,  20 

6  Sutliflf  V.  Atwood,  15  O.  S.  186.  Ala.    324  ;   Gould  v.  Thompson,  4 

«  Edmonson  v.  Kite,  43  Mo.  176  ;  Met.  224 ;  Clough  v.  Hosford,  6  N. 

Tew  V.   Jones,   13  M.   &  W.    12 ;  H.  231. 


445  DISCOVERING  RIGHT  OF  ACTION.  §423 

while  debt  was  the  exclusive  remedy  for  rent  reserved ;  * 
debt  being  regarded  as  a  higher  remedy  than  assumpsit^ 
and  a  plaintiff  being  required  always  to  pursue  his  highest 
remedy.2  So,  also,  rent  received  by  such  wrongful  occupant 
can  not  be  recovered  in  an  action  for  money  had  and  received,'^ 
because  the  title  to  real  property  can  not  be  tried  in  such 
action. 

V.  DAMAGE  AS  AN  ELEMENT  OF   RIGHTS    OF   ACTION. 

423.  Damages  Defined  and  Classified. — Damage  is  the 
pecuniary  indemnity,  obtainable  by  action,  for  the  infringe- 
ment of  a  right.  Not  all  injury  may  be  repaired  by  action. 
Some  injuries  are  so  trifling  as  to  fall  within  the  operation  of 
the  maxim  de  minimis  non  curat  lex.  For  example,  where  an 
officer  attaches  a  quantity  of  liay,  and  uses  the  debtor's  pitch- 
fork in  removing  it,  returning  the  pitchfork  to  the  place 
where  he  found  it,  no  action  will  lie.  To  give  an  action  for 
an  infringement  so  trifling,  would  be  at  once  harsh  and 
pedantic* 

And  however  great  and  obvious  the  injury  may  be,  dam- 
ages may  be  recovered  only  when  a  recognized  legal  right 
has  been  invaded.^  An  action  Avill  not  lie  for  the  pullinq- 
down  of  a  house  when  necessary  to  arrest  the  progress  of  a 
fire  in  a  densely  built  city ;  ^  nor  for  passing  over  adjacent 
lands  when  the  highway  has  been  suddenly  rendered  impass- 
able.^ In  such  cases  no  legal  right  is  invaded,  for  the  private 
.'ght  of  property  is  subject  to  such  incidental  burdens  for  the 
public  good.  Salus  populi  suprema  lex?  So,  too,  if  the 
owner  of  lands  adjoining  the  lands  of  another  whereon  is 
erected  a  palatial  residence,  erect  upon  his  lands  a  cheap  and 

1  Ante,  93.  «  Field  v.  City,  39  Iowa,  575.     C/. 

2  Keener  on  Quasi-Contr.  193.  Mitchell  v.  Harmony,  13  How.  115  ; 

3  Clarence  v.  Marshall,  2  C.  &  M.  Russell  v.  Mayor,  2  Den.  461  ; 
495  :  Lockard  v.    Barton,   78  Ala.  Mayor  v.  Lord,  17  Wend.  285. 

189  ;  King  v.  Mason,  42  111.  223.  "^  3   Kent  Com.    424  ;    Per  Lord 

*  Week's    Dam.    Abs.    Inj.     11;  Mansfield,  in  Taylor  v.  Whitehead, 

Paul  V.  Sloson,  22  Vt.  231 ;  Broom's  2  Doug.  749. 

Max.  142.  8  Br.  Max.  2  ;  Week's  Dam.  Abs. 

6  Steph.  PI.  29,  30.  Inj.  14. 


1 424  APPLICATION  OF  PRINCIPLES.  446 

unsightly  building,  which  greatly  impairs  the  value  of  his 
neighbor's  property,  no  action  will  lie.  The  reason  is,  that 
no  legal  right  of  the  neighbor  is  infringed ;  and  the  loss  in 
fact  sustained  is  absque  injuria.^ 

Damages  are  nominal,  compensatory,  or  punitive.  Every 
violation  of  a  recognized  legal  right — unless  it  be  so  trifling 
tliat  the  law  will  not  regard  it — imports  some  damage,  and  in 
the  absence  of  actual  loss  tlie  law  gives  nominal  damages,  to 
protect  the  right.  Compensatory  damages  are  those  given  to 
compensate  for  actual  loss  sustained.  Punitive  damages  are 
given  as  a  punishment  and  as  a  restraint,  for  the  benefit  of 
the  community. 

Compensatory  damages  are  either  general  or  special ;  and  it 
is  with  this  division,  hereafter  to  be  explained,  that  the  rules 
of  pleading  are  mainly  concerned. 

424.  General  Damages  not  to  be  Pleaded — The  Ad 
Damnum. — At  common  law,  the  declaration,  in  actions 
sounding  in  damages,  was  required  to  lay  damages — that  is, 
to  allege  that  the  wrong  complained  of  was  to  the  damage  of 
the  plaintiff,  in  an  amount  specified.  This  formal  part  of  the 
declaration  was  called  the  ad  damnum.^ 

The  Reformed  Procedure  requires  the  complaint  to  contain 
a  demand  for  the  relief  claimed.  In  most  cases,  this  state- 
ment of  the  relief  demanded  answers  as  well  the  purpose 
<of  the  ad  damnum  at  common  law,  though  the  formal  and 
concise  statement  of  the  ad  damnum  is  generally  retained  in 
practice.  The  amount  so  stated  limits  the  plaintiff's  recovery, 
whether  upon  default  or  upon  trial ;  though  a  verdict  in  excess 
thereof  may  be  cured  by  a  remittitur  damnum^  which  is  a 
formal  release  of  such  excess,  or  by  leave  to  amend  the  com- 
plaint and  increase  the  damages  laid.^ 

Under  a  general  allegation  of  damages,  the  plaintiff  may 
prove  and  may  recover  only  general  damages — that  is,  such 
as  naturally  and  necessarily  result  from  the  acts  or  omis- 
sions complained  of. 

1  Wood  on  Nuisances,  880 ;  8  1  Suth.  Dam.  761 ;  Steph.  PL 
Barnes  v.  Hathom,  54  Me.  124.  418,  note  1. 

2  Steph.  PI.  417.  418,  and  notes. 


447  DISCOVERING  RIGHT  OF  ACTION.  §426 

Where  the  facts  stated  involve  a  legal  injury,  whether  the 
action  be  in  contract  or  in  tort,  a  general  averment  of  damages, 
stating  the  gross  amount,  is  sufficient,  and  no  special  state 
ment  of  the  damages  is  necessary.  The  reason  is,  that  what 
the  law  implies  from  facts  stated  need  not  be  alleged ;  and 
as  the  law  implies  general  damages  from  a  breach  of  contract 
or  from  a  tort,  such  implied  result  need  not  be  alleged.  But 
as  there  is  no  legfal  inference  as  to  the  amount  of  the  damage, *, 
the  amount  only  should  be  stated. 

In  an  action  for  assault  and  battery,  with  a  general  prayer 
damages  for  a  permanent  injury,  the  natural  and  necessary 
consequences  of  the  unlawful  act,  may  be  recovered  without 
being  specially  pleaded.^ 

425.  Special  Damages  Must  Ibe  Alleged. — A  plaintiff 
may  be  entitled  to  damages  different  from,  or  in  addition 
to,  those  general  damages  which  the  law  implies ;  he  may 
have  suffered  injury  which,  though  the  natural  consequence, 
is  not  the  necessary  consequence,  of  the  wrong  complained 
of,  and  for  which  he  can  not  recover  under  an  ad  damnum. 
In  such  case,  in  order  that  the  court  may  be  advised  as  to  the 
scope  of  the  action,  and  to  give  the  defendant  notice  of  wliat 
will  be  subjects  of  proof  at  the  trial,  the  facts  out  of  which 
such  special  damages  arise  are  required  to  be  specially  pleaded 
in  the  complaint.  ^ 

Special  damages  arise  mainly  from  tort,  though  they  some- 
times arise  from  breach  of  contract.  In  an  action  by  the 
purchaser  of  a  chattel,  for  failure  to  deliver  according  to  con- 
tract, the  consequent  failure  of  the  purchaser  to  fulfill  a  con- 
tract of  resale  at  an  advanced  price,  can  not  be  shown, — in  a 
case  where  the  lost  profts  may  properly  enter  into  the 
damages,^ — unless  specially  pleaded.^  Where  the  seller 
of  a  flock  of  sheep  affected  by  a  contagious  disease  falsely 
represents  them  to  be  sound,  and  the  purchaser,  relying 
upon  such  representation,  turns  them  in  with  other  sheep» 

1  Stevenson  v.  Morris,  37  O.  S.  11.  ^  ggnj^  ^n  SaHes,  876  ;  Hadley  v. 

a  Steph.  Pi.  417,  note  2  ;  1  Suth.  Baxendale,   9  Ex.   341 ;   Booth  v. 

Dam.   763;    Mayne  Dam.    751  ;    2  Mill  Co.,  60  N.  Y.  487. 

Add.  on  Torts,  1339 ;  Boone  PL  18,  *  Boone  PI.   140.     Cf.  Booth  v. 

140.  Mill  Co.,  60  N.  Y.  487. 


§  426  APPLICATION  OF  PRINCIPLES.  443 

whereby  the  disease  is  communicated  to  them,  the  injury  from 
such  communication  of  the  disease,  while  it  is  the  natural 
consequence,  it  is  not  the  necessary  consequence,  of  the  false 
representation,  and  must  be  specially  pleaded  in  an  action  to 
xecover  therefor.^ 

In  actions  for  personal  injury,  the  plaintiff  may,  under  an 
<ad  damnum^  recover  for  physical  pain,  mental  suffering,  and 
loss  of  time  from  its  disabling  effects,  because  these  are  among 
the  natural  and  necessary  effects  of  the  act  of  the  tort-feasor. 
But  loss  of  earnings  in  a  special  employment,  and  expenses 
incurred  for  medical  aid,  except,  perhaps,  in  case  of  very 
serious  injury,  must  be  specially  alleged,  in  order  to  be  in- 
cluded in  an  assessment  of  damages.^ 

Where  the  purchaser  of  a  cable,  relying  upon  a  warranty, 
attached  an  anchor  to  the  cable,  and  both  cable  and  anchor 
were  lost  by  reason  of  a  defect  in  the  cable,  covered  by  the 
warranty,  the  loss  of  the  cable  is  matter  of  general  damage, 
and  may  be  proved  under  an  ad  damnum  ;  but  the  loss  of  the 
anchor  is  matter  of  special  damage,  and  must  be  specially 
pleaded.3 

426.  Damages  the  Gist  of  the  Action. — There  are  some 
acts,  not  in  themselves  actionable,  but  which  result  in  actual 
injury,  for  which  the  law  gives  a  remedy  by  action.  In  such 
'Cases,  the  act  complained  of  being  one  from  which  no  injury 
•will  be  inferred  as  a  natural  or  necessary  result,  actual  injury 
must  be  alleged  ;  otherwise,  no  invasion  of  a  primary  right 
■will  appear.  Where  damage  necessarily  results  from  the  act 
complained  of,  the  tortious  act  is  the  gist  of  the  action  ;  but 
where  the  act  is  not  in  itself  actionable,  the  resulting  damage 
becomes  the  gist  of  the  action,  and  must  therefore  be  alleged 
with  convenient  particularity.  Cases  of  this  kind  often  arise 
from  such  use  of  one's  property  as  causes  injury  to  the  prop- 
erty of  another,  in  violation  of  the  maxim  sic  utere  tuo  ut 

1  Wilcox  V.  McCoy,  21  O.  S.  655 ;  36  Vt.    580;    Curtis  v,   R.  R.,   18 

Packard  v.  Slack,  32  Vt.  9.  N.  Y.  534  ;  Wright  v.  Compton,  53 

*  Tomlinson  v.  Derby,  43  Conn.  Ind.  337  ;  1  Suth.  Dam.  776. 

662  ;  Taylor  v.  Monroe,  43  Conn.  ^  Borradaile  v.  Brunton,  2  Moore, 

86;  Baldwin  v.  W.  R.  R.  Corp.,  4  582. 
Gray,  383;  Folsom  v.  Underbill, 


449  DISCOVERING  RIGHT  OF  ACTION.  §427 

alienum  non  Icedas.  Ir>  the  case  of  a  public  nuisance,  since 
the  law  does  not  imply  damage  to  any  particular  individual 
from  the  public  offense,  the  plaintiff  must  set  out  the  special 
damage  resulting  to  him  therefrom.^  The  reason  is,  that 
such  averment  is  necessary  to  show  the  infringement  of  a 
private  right.  But  for  a  private  nuisance,  such  as  turning 
the  course  of  an  ancient  stream,  so  that  it  no  longer  flows 
tl  rough  plaintiff's  lands,  or  projecting  the  eaves  of  a  build- 
in  j  over  the  lands  of  plaintiff,  it  is  an  intendment  of  the  law 
that  injury  results.^  In  other  words,  each  of  these  acts — 
diverting  the  stream  in  the  one  case,  and  overhanging  the 
lands  in  the  other — is  of  itself  an  invasion  of  a  recognized 
legal  right,  and  the  law  gives  an  action  to  protect  the  right, 
whether  actual  injury  has  resulted  or  not. 

427.  Damages  the  Gist  of  the  Action,  Continued. — In 
an  action  for  slander,  if  the  words  spoken  are  not  actionable 
j)er  se,  there  must  be  actual  injury  as  the  basis  of  an  action, 
and  such  damage,  being  the  gist  of  the  action,  must  be 
specially  alleged  and  proved.  If  the  words  are  actionable 
per  se,  the  law  imputes  damage,  so  that  the  mere  allegation 
of  the  speaking  of  the  words  imports  the  invasion  of  the 
right  of  personal  security  ;  but  if  the  defamatory  words  are 
not  actionable  per  se,  what  the  law  would  otherwise  imply 
must  be  made  to  appear  by  allegation.^ 

From  what  has  been  stated,  it  will  be  seen  that  special 
damages,  whether  of  the  gist  of  the  action,  or  only  collateral 
thereto,  can  not  be  the  subject  of  proof  or  of  recovery,  unless 
specially  pleaded. 

As  a  general  rule,  it  is  not  necessary  to  the  sufficiency  of 
a  complaint  that  it  state  the  particular  items  of  damage, 
though  in  some  cases  such  particularity  of  statement  may 
be  required,  upon  motion,  in  order  to  fully  advise  the  defend- 
ant as  to  what  he  is  expected  to  meet  upon  the  trial.* 


1 1  Suth.  Dam.  766  ;  Per  Coulter,  13  ;  Frye  v.  Prentice,  14  L.  J.  (N. 

J.,  in  Hart  v.  Evans,  8  Pa.  St.  13,  S.)  298. 

21.  8  Steph.  PL  125,  in  nota ;  Hoag 

*  Wood  on  Nuisances,  97  ;  1  Suth.  v.  Hatch,  23  Conn.  590. 

Dam.  766  ;  Hart  v.  Evans,  8  Pa.  St.  <  Mayne  Dam.  750. 
29 


?^428  APPLICATION  OF  PRINCIPLES.  450 

As  to  whether  facts  in  aggravation  of  damages — facts 
ivhich  tend  to  increase  the  amount  of  damages,  but  do 
Jiot  affect  the  right  of  action — should  be  especially  pleaded 
In  order  to  be  the  subject  of  proof,  tlie  prevailing  rule  seems 
to  be  this  :  If  such  facts  are  not  a  part  of  the  tortious  act 
complained  of,  and  are  separable  from  the  manner  of  doing 
such  act,  they  should  be  stated  ;  otherwise  they  need  not  be 
stated,  for  the  statement  of  the  tortious  act,  without  the  at- 
tending circumstances,  authorizes  proof  of  all  that  fairly 
enters  into  such  act  as  constitutent  parts  thereof.  As  to 
facts  in  mitigation  of  damages,  the  theory  of  the  new  pro- 
cedure, as  well  as  the  weight  of  authority,  seems  to  require 
them  to  be  pleaded,  only  when  they  are  so  related  to  the 
case  as  to  be  essentially  new  matter.^ 

428.  When  Indemnified  Party  may  Sue. — In  actions 
against  guarantors,  indemnitors,  sureties,  co-obligors,  and  the 
like,  a  right  of  action  does  not  arise  until  the  party  complain- 
ing has  been  damnified.  Actio  non  datur  7ion  damnijicato. 
Damnification  is  that  which  causes  a  loss  or  damage.  For 
example,  one  is  damnified  when  he  has  paid  the  debt  of 
another ;  and  generally,  he  is  damnified  whenever  he  becomes 
liable  to  be  sued  for  the  debt  of  another. 

Express  contracts  for  indemnity  vary  in  their  scope  and 
terms,  and  the  authorities  are  not  uniform  as  to  the  construc- 
tion and  effect  of  such  agreements.  Generally,  where  the 
undertaking  is  in  terms  to  save  one  harmless  from  some  con- 
sequence, there  is  no  right  of  action  until  the  promisee  has 
suffered  actual  loss  or  injury  from  the  cause  against  which 
the  indemnity  is  given.^     In  such  case,  damages  are  generally 

*  Ante,  385,  and  cases  there  cited.  Eames,  15  Minn.  461  ;  Gennings  v. 

Cf.  Boone  PI.  76.  Norton,    35   Me.    308  ;    Ewing    v. 

2  Aberdeen  v.  Blackmar,  6  Hill,  Reilly,   34  Mo.    113  ;    Douglass  v. 

324 ;    Coe  v.   Rankin,   5  McLean,  Clark,    14  John.    177 ;    Hussey  v. 

354 ;  Little  v.  Little,  13  Pick.  426  ;  Collins,  30  Me.  190  ;  Scott  v.  Tyler, 

Crippen  v.  Thompson,  6  Barb.  532  ;  14  Barb.  202  ;   Jones  v.  Childs,  8 

Conner  v.  Bean,  43  N.  H.  202  ;  Lott  Nev.  121.     Cf.  Wicker  v.  Hoppock, 

V.    Mitchell,   32  Cal.    23  ;  Hall  v.  6  Wall.  94  ;  Gardner  v.  Cleveland, 

Cresswell,  12  Gill  &  J.  38 ;  Lyman  9  Pick.  336  ;  Chace  v.  Hinman,  8 

V.   Lull,   4  N.   H.   495;  Jeflfers  v.  Wend.    452;     Abeles    v.     Cohen, 

Johnson,  21  N.  J.  L.  73  ;  Weller  v.  8  Kan.  180.     Contra,  Churchill  v. 


451  DISCOVERING  RIGHT  OF  ACTION.  §  429 

regarded  as  the  gist  of  the  action,  and  actual  injury  must  be 
alleged,  and  non  damnificatus  is  a  proper  plea.^  But  where 
the  contract  is  for  more  than  more  indemnity,  as  where  one 
undertakes,  by  an  original  agreement,  to  pay  another's  debt, 
the  promisee  is  damnified  whenever  the  promisor  makes 
•default  in  payment.  The  right  of  the  promisee  under  such 
contract  is,  to  have  his  debt  paid ;  not  merely  to  be  indem- 
nified in  continued  delinquency  to  his  creditor.  So,  generally, 
where  the  undertaking  is  to  do  some  act  for  the  benefit  of 
the  promisee,  as  well  as  to  indemnify  and  save  him  harmless 
from  the  consequences  of  non-performance,  the  promisee  is 
damnified,  and  has  a  right  of  action,  whenever  the  promisor 
fails  to  perform  the  act  promised ;  ^  and  the  amount  of  the 
recovery  is  generally  held  to  be  the  full  amount  of  payment 
or  injury  to  which  the  promisee  is  thus  exposed.^ 

429.  When  Indemnfled  Party  may  Sue,  Continued. — 
"Where,  in  part  payment  for  property  purchased  by  the  de- 
fendant from  the  plaintiff,  the  vendee  agreed  to  assume  certain 
indebtedness  of  the  vendor,  and  to  save  him  harmless  there- 
from, and  a  creditor  thereafter  sued  the  vendor  on  a  debt 
included  in  the  agreement,  it  was  held  that  the  vendor  could 
maintain  an  action  on  the  agreement  without  alleging  pay- 
ment by  him,  and  that  he  could  recover  the  full  amount  of 
the  debt.^     Where  land  was  conveyed,  "  subject  to  mortgages 

Hunt,  3  Den.  326  ;  Conkey  v.  Hop-  10  Mich.  291 ;  Holmes  v.  Rhodes,  1 

kins,  17  John.  113.  Bos.  &  P.  638 ;  Furnas  v.  Durgin, 

1  1  Saund.  117.  note  1  :  HoUand  119  Mass.  500  ;  s.  C.  20  Am.  Rep. 
V.    Malken,   2  Wils.    126;   Cox  v.  341. 

Joseph,   5  T.   R.    307  ;  Archer    v.  »  gtout  v.  Folger,  34  Iowa,  71  ; 

Archer,   8  Grat.    539  ;  Holmes  v.  s.  c.  11  Am.  Rep.  138 ;  Lathrop  v. 

Rhodes,  1  Bos.  &  P.  640,  note  a.  Atwood,   21  Conn.   116  ;  Ex  parte 

2  Lathrop  v.  Atwood,  21  Conn.  Negus,  7  Wend.  499  ;  Port  v.  Jack- 
116  ;  Stout  V.  Folger,  34  Iowa,  71  ;  son,  17  John.  239  ;  Crofoot  v. 
S.  c.  11  Am.  Rep.  138  ;  In  re  Negus,  Moore,  4  Vt.  204  ;  Ham  v.  Hill,  29 
7  Wend.  499  ;  Port  v.  Jackson,  17  Mo.  280  ;  Wilson  v.  Stilwell,  9  O, 
John.  239  ;  Thomas  v.  Allen,  1  Hill,  S.  467  ;  Furnas  v.  Durgin,  119  Mass. 
145  ;  Churchill  v.  Hunt,  3  Den.  321  ;  500  ;  s.  c.  20  Am.  Rep.  341  ;  2  Suth. 
Redfield  v.  Haight,   27  Conn.  31  ;  Dam.  610  et  seq. 

Wilson  V.    StilweU,    9  O.  S.    467  ;        ■»  Stout  v.  Folger,  34  Iowa,  71  : 
Crofoot  V.  Moore,  4  Vt.  204  ;  Ham    S.  C  7  Am.  Rep.  138. 
V.  Hill,  29  Mo.  280';  Dye  v.  Mann, 


^§  430-431  APPLICATION  OF  PRINCIPLES.  452 

amounting  to  $6,500,  which  the  grantee  hereby  assumes  to 
pay,"  it  was  held  that  upon  default  of  the  grantee  as  to  one 
oif  the  mortgages,  the  grantor  had  a  right  of  action,  without 
having  «im>^elf  paid  the  debt,  and  that  he  could  recover  the 
amount  of  the  mortgage  and  interest.^  Where  a  retiring 
member  of  a  firm  took  from  liis  partner  a  bond  with  surety, 
conditioned  for  the  payment  of  the  firm  debts,  the  obligee 
may,  upon  condition  broken,  and  without  having  himself 
paid  any  of  the  debts,  maintain  an  action  on  the  bond,  and 
recover  the  amount  of  the  debts  remaining  unpaid.^ 

In  such  actions,  if  the  plaintiff  has  not  himself  paid  the 
debt,  it  is  proper  practice  to  make  the  original  creditor  a 
party,  so  that  the  court  may  direct  the  application  of  the 
amount  recovered  to  the  discharge  of  the  debt,  and  thus 
save  the  defendant  obligor  from  a  second  payment,  at  the 
suit  of  the  original  creditor.^ 

VI.   DIVESTITIVE   AND   EXCULPATORY  FACTS. 

430.  Considering  Both  Sides  of  a  Case. — In  determin- 
ing whether  a  given  state  of  facts  gives  rise  to  a  right  of 
action,  due  consideration  should  be  given  to  facts  that  are 
in  their  nature  divestitive  or  exculjjatory — such  operative  facts 
as,  if  pleaded  by  the  adversary,  would  constitute  a  defense 
of  new  matter.  Such  facts  are  not  always  voluntarily  dis- 
closed by  the  client,  are  sometimes  not  known  to  him,  and 
are  oftentimes  difficult  to,  discover.  Of  this  nature  are,  the 
acquiescence  of  the  injured  party,  his  contributory  negligence, 
a  waiver  of  his  rights,  the  intervention  of  an  independent 
agency,  former  adjudication,  estoppel,  and  so  forth. 

431.  Immunity  of  the  State  from  Suit. — It  is  an  ele- 
mentary principle  that  the  State  can  not,  in  invitum,  be 
subjected  to  an  action  at  the  suit  of  an  individual.  This 
immunity  is  accorded  to  sovereignt}""  generally,*  and  is  recog- 

1  Furnas  v.  Durgin,  119  Mass.  *  Hans  v.  Louisiana,  134  U.  S.  1. 
500 ;  S.  C.  20  Am.  Rep.  341.  Cf.    De  Saussure  v.  Gaillard,  127 

2  Wilson  V.  Stilwell,  9  O.  S.  467.      U.  S.  216  ;  Clark  v.  Barnard,  108 
«  2  Suth.  on  Dam.  615  ;  Wilson    U.  S.  436. 

V.  StiUvell,  9  O.  S.  467. 


453  DISCOVERING  RIGHT  OF  ACTION.  §431 

nized  by  the  constitution  of  the  United  States.*  Hut  the 
immunity  is  a  personal  privilege,  and  mav  be  waived  at  the 
pleasure  of  the  State.  This  it  may  do  by  act  of  the  Isgis- 
}ature  authorizing  a  suit  against  it,  in  which  case  it  may 
attach  any  conditions  ;  ^  or  by  voluntarily  appearing  in  an 
action  against  it ;  ^  or  by  intervening  in  an  action.*  While 
an  individual  may  not  maintain  an  action  against  the  State, 
without  its  consent,  he  may,  when  sued  by  the  State,  assert 
a  counter-claim  against  it ;  but  he  can  use  his  counter-demand 
only  as  a  defense,  and  can  not  recover  judgment  for  any 
excess  thereof  over  the  claim  of  the  State.^ 

This  immunity  of  the  State  is  transferred  to  municipal  cor- 
porations, and  to  quasi-municipal  corporations,  such  as  coun- 
ties and  townships,  when  in  the  exercise  of  public  or 
governmental  duties.  The  doctrine  is,  that  when  a  city  or 
town  exercises  a  power,  or  discharges  a  duty,  which  is 
public  or  governmental  in  its  character,  and  which  is  for  the 
benefit  of  the  general  public,  it  simply  acts  as  an  agency  of 
the  State,  and  is  no  more  liable  than  the  State  would  be, 
unless  expressly  made  so  by  statute ;  but  in  *^^he  exercise  of  a 
power  or  duty  conferred  for  the  local  advantage  of  the  munic- 
ipality and  its  inhabitants,  it  is  liable  in  damages  for  injury 
resulting  from  negligent  performance.^  In  the  one  case,  the 
municipal  body  exercises  the  duties  of  sovereignty,  delegated 
to  it  by  the  State,  for  the  more  efficient  government  of  a 
locality  ;  in  the  other  case,  it  exercises  a  power,  conferred  for 
its  own  benefit.  The  duties  in  one  instance  are  public,  and 
are  superimposed ;  in  the  other,  they  are  quasi-private,  and 
are  voluntarily  accepted  and  exercised.'^ 

^  U.  S.  Const.,  Amendment  XI.  ;  ney.  J.,  in  Dayton  v.  Pease,  4  O.  S. 

Hans  V.  Louisiana,  134  U.  S.  1, 12.  80,  99. 

^  De  oaussure  v.  Gaillard,  127  o .  ^  This  immunity  has    been    ey 

S.  216.  tended    to    cases  where   damages 

8  Clark  V,  Barnard,  108  U.  S.  436.  result  from  the  defective  nlan  of  a 

*  Clark  V.   Barnara,    108  U.    S.  public  woru,  as  distmguisnea  irom 

436.  a  defective  execution  thereof — the 

6  Kentucky  v.  Todd,  9  Ky.  708.  former    resulting    from    error    of 

8  Tiedeman    Munic.    Corp.    824,  judgment,  the  latter  from  want  of 

^25,  333  ;  2  Dili.  Munic.  Corp.  997  ;  skill  and  care.     2  Thomp.  on  Neg. 

2  Thomp.  on  Neg.  734 ;  Per  Ran-  735  ;  Springfield  v.  Spence,  39  O.  S. 


§  432  APPLICATION  OF  PRINCIPLES.  454 

432.  Acquiescence  of  the  Injured  Party. — It  is  a  gen- 
eral  principle  of  the  law,  embodied  in  the  maxim  volenti  non 
jit  injuria^  that  no  one  can  maintain  an  action  for  a  loss,  if 
he  has  consented  to  the  act  that  occasions  his  loss.^  The 
cases  illustrating  the  application  of  this  principle  are  numer- 
ous and  varied  ;  and  while  it  is  generally  a  complete  bar  to 
recovery,  it  sometimes  works  only  a  mitigation  of  damages. 
Money  paid  voluntarily,  with  knowledge  that  the  payee  is 
not  entitled  to  it,  can  not  be  recovered ;  for  the  only  ground  upon 
wliich  recovery  could  be  asked — that  the  payee  was  not 
entitled — was  known  and  acquiesced  in.  Where  an  insurance 
company  voluntarily  paid  money  on  a  policy  which  it  believed 
at  the  time  of  payment  had  been  procured  by  fraud,  it  was 
held  that  the  money  so  paid  could  not  be  recovered.  The 
company  had  consented  to  the  very  state  of  facts  on  which  it 
based  its  demand.^  But  if  money  be  paid  under  a  mistake 
as  to  a  material  fact,  and  payment  induced  by  such  mistake, 
this  rule  does  not  apply,  for  there  is  no  consent  to  the  state 
of  facts  upon  which  recovery  is  sought.  Not  so,  generally, 
where  the  mistake  is  as  to  the  law.  Ignorantia  facti  excusat 
— ignorantia  legis  neminem  excusat. 

It  is  by  reason  of  the  maxim  volenti  non  fit  injuria  that  a 
seduced  woman  can  not  recover  for  her  seduction,^  or  for  dis- 
ease contracted  from  illicit  intercourse.*  Nor  can  the  hus- 
band maintain  an  action  for  the  seduction  of  his  wife,  or  the 
father  for  the  seduction  of  his  daughter,  if  he   voluntarily 

665,  669  ;  Fair  v.  Philadelphia,  88  i  Bro.  Max.  268  ;  Tech.  of  Law, 

Pa.   St.    309.     And    it    is    not  the  225  ;  1  Wait  Ac.  &  Def.  146. 

policy  of  governments  to  indem-  ^  Frambers  v.  Risk,  2  111.  App. 

nify    persons    for    loss    sustained,  499 ;  Windbiel  v,  Carroll,  16  Hun, 

either  from  want  of  proper  laws,  101. 

or  from  the    inadequate  enforce-  ^  5  Wait  Ac.  &  Def.  662 ;  Tech. 

ment  of  laws  made  to  secure  the  of  Law,  225  ;  Woodward  v.  Ander- 

property  of  individuals ;  though  in  son,    9    Bush,   624;     Hamilton  v. 

some    states,    municipal    corpora-  Lomax,   26  Barb.    615.      In  some 

tions  are,  by  statute,  made  liable  states,    however,    such    action    is 

for  loss  occasioned  by  the  unre-  authorized  by  statute. 

strained  violence  of  a  mob.     Per  *  Hegarty  v.  Shine,  7  Cent.  L.  J. 

Gholson,  J.,  in  CoUege  v.  Cleve-  291.     See,  also,  8  Cent.  L.  J.  Ill; 

land,  12  O.  S.  377.  Cooley  on  Torts,  510-514 ;  1  Thomp. 

on  Neg.  115. 


455  DISCOVERING  RIGHT  OF  ACTION.  §433 

permitted  the  act;  and   if  not  consenting,  his  co-operating 
misconduct  or  negligence  will  go  in  mitigation.^  ^ 
433.  Acquiescence  of  Injured  Party,  Continued. — In 

an  action  by  a  passenger  wrongfully  ejected  from  a  railroad 
train,  it  appeared  that  the  plaintiff,  knowing  that  the  estab- 
lished rates  of  the  company  were  in  excess  of  those  allowed 
by  law»  took  passage,  intending  not  to  pay  the  excessive 
fare,  expecting  to  be  ejected,  and  intending,  if  ejected,  to 
sue  the  company  in  order  to  make  money  out  of  the  trans- 
action. It  was  held  that  he  could  recover  only  compensatory 
damages.  The  expulsion  he  complained  of  was  sought  and 
expected ;  and  "  to  the  willing  mind  there  is  no  injury."  ^ 
I  After  an  actionable  wrong  has  been  committed,  it  is  the 
duty  of  the  injured  party  to  make  reasonable  efforts  to  pre- 
vent its  increase.  If  by  a  timely  and  reasonable  outlay  of 
money  or  labor,  further  loss  may  be  averted  or  diminished, 
he  must  so  protect  himself ;  and  for  injury  resulting  from  his 
failure  to  use  such  reasonable  precaution,  he  can  not  recover.^ 
For  example,  if  one  wrongfully  break  another's  window,  the 
cost  of  repairing  the  window  is  the  measure  of  damage  ;  and 
if  the  owner  neglect  to  repair  the  window,  and  his  furniture 
should  be  injured  by  the  consequent  exposure,  such  remote 
loss  must  fall  upon  him. 

Where  persons  fight  by  agreement,  it  has  been  almost  uni- 
formly held,  that,  notwithstanding  the  act  of  each  is  unlaw- 
ful, and  is  consented  to  by  the  other,  the  injured  party  may 
maintain  an  action  for  damages  ;  ^  but  the  fact  that  the  parties 
fought  by  agreement  may  be  shown  in  mitigation.^  This  ap- 
parent anomaly  rests  upon  the  importance  which  the  law 
attaches  to  the  public  peace,  and  to  the  right  of  personal 

1  5  Wait  Ac.  &  Def.  663  ;  Week's  v.  Wright,  45  O.  S.  177  ;  Bell  v. 
Dam.  Absq.  Inj.  37-39  ;  3  Add.  on  Hausley,  3  Jones  N.  C.  131  ;  Stout 
Torts,  1379.  v.  Wren,  1  Hawks,  430  ;  Adams  v. 

2  C.  H.  &  D.  Ry.  Co.  v.  Cole,  39  Waggoner,  33  Ind.  531  ;  Shay  v. 
O.  S.  136.  Thompson,  59  Wis.   540  ;  s.  C.   48 

*  Clark  V.  Locomotive  Works,  33    Am.  Rep.  538. 

Mich.    348  ;    Lawson  v.    Price,   45  &  2  Green,  on  Ev.  85  ;  Barholt  v. 

Md.  123  ;  Pierce  on  Railroads,  273-  Wright,  45  O.    S.    177  ;  Adams  v. 

3,  and  note.  Waggoner,  33  Ind.  531. 

*  Cooley  on  Torts,  163  ;  Barholt 


§434  APPLICATION  OF  PRINCIPLES.  4.55 

security.  The  maxim,  volenti  non  Jit  injuria,  gives  way  to 
one  of  superior  importance — salus  populi  suprema  lex.  Upon 
like  principle  of  public  policy,  one  who,  in  self-defense,  un- 
necessarily injures  his  assailant,  is  liable  therefor ;  and  the 
contributory  negligence  of  the  plaintiff  does  not  prevent  a 
recovery  for  an  injury  willfully  and  purposely  committed. 

434.  Waiver  of  One's  Rights. — The  exercise  of  ^  private 
right  is  optional  with  the  person  of  inherence  ;  but  the  per- 
formance of  a  duty  is  compulsory  upon  the  person  of  inci- 
dence. One  may  forego  the  benefit  of  a  right  that  concerns 
only  himself,  because  to  do  so  will  not  interfere  with  the 
right  of  any  other  person.^  A  waiver  is  the  intentional  re- 
linquishment of  a  known  right.  It  is  voluntary,  and  implie? 
an  election  to  dispense  with  something  of  value,  or  forego 
some  advantage  which  the  party  might,  at  his  option,  have 
insisted  upon.^ 

A  waiver,  to  be  operative,  must  be  supported  by  a  consid- 
eration, or  the  conduct  relied  on  as  a  waiver  must  be  such  as 
to  estop  the  party  from  insisting  upon  performance  c^  thr 
duty.^  A  right  can  be  waived,  only  where  it  might  be  ut- 
sisted  upon.  Therefore,  if  one  be  required  by  the  terms  of 
his  contract  to  bring  his  action  thereon  within  a  limited  time, 
no  act  of  his,  after  the  expiration  of  such  time,  will  consti- 
tute a  waiver  of  objection  as  to  time.*  A  waiver  by  one  en 
titled  to  the  performance  of  a  duty  by  another  is  not  a  per- 
formance of  a  duty,  but  an  excuse  for  noa-pej-formance ;  and 
when  relied  upon,  should  be  specially  pleaded." 

It  has  been  held  that  where  judgment  if  prematurely  en- 
tered, as  upon  a  note  before  due,  it  is  a  mere  irregularity^  not 
affecting  the  jurisdiction,  and  may  be  waived.     And  whero 

1  Mayer  v.  Ry,  Co.,  143  N.  Y.  1.  21  :  Lewis  v.  Phoenix  Ins.  Co..  44 
Aliter,  if  other  persons  have  an  Conn.  72  ;  Livesy  v.  Hotel  Co.,  0 
interest  in  the  right,  or  would  be    Neb.  50. 

prejudiced  by  a  waiver.     For  ex-  ^  jjjpiey  v.  .^tna  Ins.  Co.,30N. 

ample,   an  insolvent    debtor  may  Y.  136. 

not  waive  a  right  to  property  or  *  Killips  v.  Ins.  Co.,  28  Wis.  472, 

money,    to    the    prejudice    of  his  482 ;  s.  c.  9  Am.  Rep.  506,  511. 

creditors.  ^  Mehurin  v.  Stone,  37  O.  S.  49 ; 

2  Warren  v.  Crane,  50  Mich.  300  ;  Palmer  v.  Sawyer,  114  Mass.  1. 
Hoxie  V.  Home  Ins.  Co.,  32  Conn. 


4:57  DISCOVERING  RIGHT  OF  ACTION.  ^435 

Buch  judgment  is  entered  upon  a  warrant  of  attorney  author- 
izing a  release  of  all  errors,  and  the  record  shows  such  release, 
the  irregularity  is  waived.^ 
435.   The  Contributory  Negligence  of  Plaintiff.— In 

actions  for  injury  resulting  from  the  negligence  of  the  defend- 
ant, the  plaintiff  can  not  recover,  if  his  own  negligence  con- 
tributed to  the  injury.  This  rule  rests  upon  the  maxim  con- 
sidered in  the  last  preceding  section — volenti  non  fit  injuria. 
To  constitute  such  contributory  negligence,  two  elements 
must  concur.  There  must  be  (1)  a  want  of  ordinary  care  on 
the  part  of  the  plaintiff,  and  (2)  there  must  be  a  proximate 
connection  between  such  want  of  care  and  the  injury  com- 
plained of.  When  these  two  elements  concur,  the  negligence 
of  the  plaintiff  becomes  in  law  a  co-operative  cause  of  his  in- 
jury, and  prevents  recovery ;  for  the  reason  that,  otherwise, 
the  plaintiff  might  obtain  from  another,  compensation  for  in- 
jury self-imposed.  To  make  the  negligence  of  plaintiff  a 
proximate  cause  of  his  injuiy,  and  a  bar  to  recovery,  it  must 
be  such  that  but  for  it  he  would  not  have  been  injur©^  If 
the  plaintiff's  negligence  has  placed  him  in  danger,  but  if,  l)y 
the  exercise  of  ordinary  care  under  the  circumstances,  the 
defendant  can  avoid  iiijii'-y  ^^  the  plaintiff,  notwithsL^^idinx' 
nis  negligence,  he  must  do  so,  and  is  liable  if  he  does  ncx^ 
In  otlier  words,  it  is  the  duty  of  each  to  use  reasonable  care 
to  avoid  injury  to  the  other,  and  it  is  the  duty  of  each  to  use 
reasonable  care  to  avoid  injury  from  the  other's  negligence.^ 
Wliere  the  injury  complained  of  is  the  result  of  a  wanton 
or  willful  act,  the  plaintiff's  negligence,  though  it  contribute 
proximately  to  the  injury,  does  not  stand  in  the  way  of  recov- 
ery.*    A  child  is  held  to  the  exercise  of  only  such  care  as  a 

1  Bank  V.  Milwaukee,  etc.,  MilLs.  of  contributory  negligence,  see  2 

84  Wis.  2-6.  Thomp.  on  Neg.  1104-1216  ;  C  Weil 

'  In  such  case,  the  negligence  of  Ac.    &   Def.    583-601  ;  1  Shear.   & 

the  injured  party  is  only  a  remote  Redf.  on  Neg.  fit  -.  4  Am.  &  Eng. 

cause  of  the  injury,  ana  that  of  the  Encyc.  or  L.aw,  15. 

other  party  is  the  proximate  cause.  *  Brownell  v.  Flagler,  5  Hill,  282. 

Kerwhacker  v.  C.  C.  &  C.  Ry.  Co.,  C/.  Maumus  v.  Champion.  40  Cal. 

3  O.  S.  172  ;  Railway  Co.  v.  Kassen,  121  ;  Carroll  v.  Minn.  Val.  Ry.  Co., 

49  O.  S.  280.  13   Minn.    30 ;  Griggs  v.    Flecken- 

8  For  a  full  statement  of  the  law  stein,  14  Minn.  81  ;  N.  J.  Exp.  Co. 


§  436  APPLICATION  OF  PRINCIPLES.  458 

child  of  such  age  is  capable  of;  and  a  child  of  such  tender 
years  as  not  to  be  capable  of  exercising  any  care  for  its  safety 
can  not  be  charged  with  contributory  negligence ;  though  in 
some  jurisdictions,  the  negligence  of  the  parent,  if  present 
and  exercising  control  over  the  child,  will  be  imputed  to  it. 

It  is  not  negligence  per  se  for  one  to  risk  his  own  safety  in 
an  attempt  to  rescue  another  from  impending  danger.  If  the 
rescuer  has  rashly  and  unnecessarily  exposed  himself  to  dan- 
ger, he  can  not  recover  for  injuries  thus  brought  upon  him- 
self ;  but  if,  under  the  circumstances,  the  attempt,  though 
perilous,  was  not  rash  or  imprudent,  the  injury  will  be  at- 
tributed to  the  one  who  wrongfully  imperiled  the  person 
sought  to  be  rescued ;  and  in  such  case,  the  rescuer  should 
not  be  charged  with  the  consequences  of  error  of  judgment 
resulting  from  the  excitement  and  confusion  of  the  moment.* 

436.  Intervention  of  an  Independent  Agency. — The 
intervention  of  an  independent  act  of  a  third  person  between 
the  wrongful  act  complained  of  and  the  injury  sustained, 
which  independent  act  is  the  immediate  cause  of  the  injury, 
breaks  the  causal  connection,  and  there  can  be  no  recovery, 
unless  from  the  person  whose  act  so  intervened.^  Where  the 
defendant  unlawfully  sold  liquor  to  plaintiff's  husband, 
whereby  he  became  intoxicated,  and  insulted  another,  who 
stabbed  and  killed  him,  it  was  held  that  the  act  of  defendant 
was  only  the  remote  cause  of  the  death,  and  that  he  was  not 
liable.^ 

It  is  a  well  settled  principle  of  the  law  of  agency,  that  the 
principal  is  liable  to  third  persons  for  the  torts  of  his  agent, 
including  willful  wrongs,  if  committed  within  the  scope  and 
course  of  the  employment.*  The  principal  selects  his  own 
agent,  invests  him  with  authority,  and  has  the  right  to  con- 
trol him.  It  is  this  right  of  control  that  creates,  and  that 
measures,  the  responsibility  of  the  principal  for  the  wrongful 


V.  Nichols,  33  N.  J.  L.  434,  439 ;  on   Neg.    1089 ;    Dam.    Absq.   Inj. 

Wynn  v.  AUard,  5  Watts  &  S.  524.  131. 

1  Pa.  Ry.  Co.  v.  Langendorf ,  48  »  Shugart    v.    Egan,   83  HI.    56  ; 
O.  S.  316.  S.  c.  4  Reporter,  3. 

2  Whar.  on  Neg.  134  ;  2  Thomp.  *  Mech.  on  Agency,  732-744. 


459  DISCOVERING  RIGHT  OF  ACTION.  §437 

acts  of  the  agent.  Therefore,  where  an  employer  has  not 
this  right  of  control,  he  is  not,  and  in  justice  ought  not  to  be, 
responsible  for  an  act  that  he  had  neither  power  nor  right  to 
control.  Where  an  independent  contractor  undertakes  to 
accomplish  a  certain  result  for  his  employer,  and  is  not  sub- 
ject to  the  control  or  direction  of  the  employer  as  to  the 
means  or  manner  of  doing  the  work,  the  employer  can  not  be 
made  liable  for  injury  resulting  from  the  act  of  the  con- 
tractor; provided  (1)  that  the  thing  to  be  done  is  not 
in  itself  unlawful,  and  (2)  that  it  is  something  from 
which,  if  properly  done,  no   injury   can  result  to  third  per- 


sons 


Where  a  railroad  company  contracted  with  another  to  build 
its  entire  road,  not  retaining  the  right  to  direct  or  control  the 
manner  of  doing  the  work,  the  company  is  not  liable  to  a 
third  person  for  injury  resulting  from  the  negligence  of  the 
contractor  in  doing  the  work.^ 

When  one,  by  his  own  contract,  creates  a  duty  or  charge 
upon  himself,  he  is  bound  to  make  it  good,  if  he  may,  not- 
withstanding any  accident  by  inevitable  necessity,  because  he 
miglit  have  provided  against  it  by  his  conti-act.^ 

437.  Payment  by  a  Stranger — not  Defensive. — Per- 
formance of  the  acts  to  which  the  person  of  incidence  is 
obliged  discharges  him,  of  course,  from  the  obligation.  But 
performance  by  a  stranger  does  not,  ordinarily,  operate  to 
discharge  the  obligor.  In  the  Roman  law,  payment  of  a  debt 
by  a  stranger,  even  without  the  debtor's  knowledge,  extin- 
guished the  debt.*     And  it  has  been  held  in  this  country  that 


1  Mech,  on  Agency,  747,  748.     Cf.  Stone  v.  Cheshire  Ry.  Co.,  19  N. 
Ry.  Co.  V.  Morey,  47  O.  S.  207,  216.  H.  427  ;  s.  c.  51  Am.  Dec.  192.     Cf., 

2  Hughes  V.  C.  &  S.  Ry.  Co.,  39  where  the  contract  prescribed  the 
O.  S.  461  ;  McCafferty  v.  S.  D.,  manner  of  doing  the  work,  Car- 
etc.  Ry.  Co.,  61  N.  Y.  178  ;  S.  C.  man  v.  S.  &  I.  Ry.  Co.,  4  O.  S.  399  ; 
19  Am.  Rep.  267  ;  Tibbettsv.  Knox,  Tiffin  v.  McCormack,  34  O.  S.  638. 
etc.,  Ry.  Co.,  62  Me.  437  ;  Cunning-  ^Fer  Allen,  J.,  in  Oakley  v. 
ham  V.  International  Ry.  Co.,  51  Morton,  11  N.  Y.  25,  and  cases 
Tex.  503 ;  S.   c.  32  Am.  Rep.   632  ;  cited. 

Bailey  V.  T.  &  B.  Ry.    Co.,  57  Vt.  «  Hoi.   Jur.    (5th    ed.)  268,    and 

252  ;  s.  c.  52  Am.  Rep.  129.    Contra,  note  3. 


§437  APPLICATION  OF  PRINCIPLES.  450 

payment  by  a  stranger,  if  received  as  payment  of  the  debt» 
will  extinrjuisli  the  demand.^ 

The  prevailing  doctrine,  both  in  this  country  and  in  Eng- 
land, is,  that  where  one  has  two  separate  and  independent 
rights  of  action,  against  different  persons,  to  repair  the  same 
injury,  payment  by  one,  or  recovery  from  one,  can  not  be 
pleaded  in  bar  of  an  action  at  law  against  the  other.^  If 
property,  insured  against  fire,  be  burned  by  the  negligence  of 
a  railway  company,  the  owner  has  a  right  of  action  against 
the  railway  company,  for  its  negligence,  and  against  the 
insurance  company,  on  its  contract.  The  one  is  in  tort,  the 
other  in  contract ;  and  payment  by  the  insurance  company  of 
the  full  value  of  the  property,  will  not  bar  an  action  against 
the  railway  company .^  As  to  the  railway  company,  payment 
by  the  insurance  company  was  res  inter  alios  acta,  and  for 
that  leason  was  not  available  to  the  defendant ;  it  was  a  fact 
that  did  not  belong  to  the  group  of  facts  that  fixed  the  jural 
relations  of  the  plaintiff  and  defendant,  and  for  that  reason 
could  not  be  pleaded  as  a  defense  of  new  matter. 

In  an  action  of  trespass  against  one  who,  as  sheriff,  had 
wrongfully  seized  the  plaintiff's  goods  under  an  attachment, 
the  fact  that  the  goods  had  been  burned  while  in  the  defend- 
ani;'is  possession,  and  the  value  thereof  paid  to  ths  plaintiff 
under  a  policy  01  insurance,  was  held  not  to  be  available  to 
the  defendant,  either  in  bar  or  in  mitigation.*  In  deciding 
this  case,  Judge  Cooley  said  :  "  It  certainly  strike?  nne,  at 
firct,  as  somewhat  anomalous,  that  a  party  should  be  in  n. 
position  to  legally  recover  of  two  different  parties  th*  full 
value  of  goods  which  he  has  lost;  but  we  think  the  lav 
warrants  it  in  the  present  case,  and  that  the  defendant 
suffers  no  wrong  by  it.  He  is  found  to  be  a  wrong-doer  in 
seizing  the  goods,  and  he  can  not  relieve  himself  from  respon- 

1  Harrison  v.  Hicks,  1  Port.  (Ala.)  »  Cunningham  v.  E.  &  T.  H.  Ry. 
423.  -  Co.,  102  Ind.  478  ;  s.  c.  20  Reporter, 

2  1  Suth.  on  Dam.  242  ;  Mayne  on  428  ;  Yates  v.  Whyte,  4  Bing.  N. 
Dam.  114  ;  Jones  v.  Broadhurst,  9  C.  272  ;  Weber  v.  M.  &  E.  Ry.  Co., 
C.  B.  173 ;  Hoi.  Jur.  (5th  ed.)  268,  35  N.  J.  L..409  ;  Hay  ward  v.  Cain, 
and  nets  3  :  Ante,  Z'iQ.     Cf.  Drink-  105  Mass.  213. 

water  v.  Dinsmore,  oO  N.  Y.  39o.  *  Perrott  v.  Shearer,  17  Mich.  48. 


461  DISCOVERING  RIGHT  OF  ACTION.  §  437 

sibility  to  account  for  their  full  value  except  by  restoring 
them.  He  has  no  concern  with  any  contract  the  plaintiff 
may  have  with  any  other  party  in  regard  to  the  goods,  and 
his  rights  or  liabilities  can  neither  be  increased  nor  diminished 
by  the  fact  tliat  such  contract  exists.  He  has  no  equities  as 
against  the  plaintiff  which  can  entitle  him,  under  any  cir- 
cumstances, to  an  assignment  of  the  plaintiff's  policies  of 
insurance.  The  accidental  destruction  of  the  goods  in  his 
hands  was  one  of  the  risks  lie  ran  when  the  trespass  was 
committed,  and  we  do  not  see  how  the  law  can  relieve  him 
from  the  consequences.  If  the  owner,  under  such  circum- 
stances, keeps  his  interest  insured,  he  can  not  be  held  to  pay 
the  money  expended  for  that  purpose  for  the  interest  of  the 
trespasser.  He  already  has  a  right  of  action  for  the  full 
value  of  the  goods,  and  he  does  not  give  that  away  by  taking 
a  contract  of  insurance.  For  the  latter  he  pays  an  equiva- 
lent in  the  premium,  and  is  therefore  entitled  to  the  benefit 
of  it,  if  any  benefit  shall  result." 

In  some  cases  it  has  been  held,  upon  the  equitable  prin- 
ciple of  subrogation,  that  the  insurance  company  is  entitled, 
as  against  the  insured,  to  be  reimbursed  out  of  the  amount 
recovered  as  damages.^ 

In  an  action  to  recover  damages  for  an  injury  causing 
death,  it  was  held  that  the  receipt  of  money  on  a  policy  of 
insurance  on  the  life  of  the  deceased  could  not  be  shown  for 
the  purpose  of  reducing  the  amount  of  recovery .^  Where 
one  is  injured  by  assault  and  battery,  he  may  recover,  as  part 
of  his  damages,  the  amount  of  a  surgeon's  bill,  although 
before  the  trial,  but  after  suit  brought,  it  had  been  paid  by 
the  township  trustees,  to  whom  the  plaintiff  was  under  no 
legal  liability  to  refund  the  amount.^  And  in  an  action  for 
physical  injury  caused  by  negligence,  the  defendant  may  not 
show,  in  mitigation  of  damages,  that  the  plaintiff's  employer 
continued  the  plaintiff's  wages  during  the    time  of   his  dis- 

1  Weber  v.  M.  &  E.  Ry.  Co.,  35  'Klein  v.  Thompson,  19  O.  S. 
N.  J.  L.  409.  569. 

"Sherlock  v.  Ailing,  Admr.,  44 
Ind.  184. 


§  438  APPLICATION  OF  PRINCIPLES.  4G2 

ability.^  But  in  a  like  action,  it  was  held  that  after  the 
plaintiff  had  testified  to  the  loss  of  wages  as  an  item  of 
damages,  the  defendant  was  entitled  to  ask  him,  in  cross- 
examination,  if  his  employer  had  not  paid  his  wages  during 
the  time  lie  was  sick.^ 

<t 

VII.   DISTINGUISHING  RIGHTS   OF   ACTION. 

438.  Rule  for  Distinguishing  Separate  Rights  of 
Action. — A  complaint  should  contain  a  separate  cause  of 
action  for  each  light  of  action  disclosed  by  the  facts  therein 
stated;  and  whatever  facts  would,  if  stated  by  themselves, 
entitle  one  to  relief  by  action,  constitute  a  right  of  action, 
and  should  be  separately  stated  as  one  cause  of  action.  In 
determining  whether  a  given  statement  of  operative  frxts, 
investitive  and  culpatory,  discloses  but  one  right  of  action  or 
more  than  one,  it  is  necessary  only  to  determine  whether 
more  than  one  primary  right  has  been  invaded,  or  whether 
there  has  been  more  than  one  invasion  of  a  single  primary 
right.  Leaving  out  of  consideration  the  nature  or  kinds  of 
relief  sought,  if  but  one  right,  however  comprehensive,  is 
asserted,  and  if  but  one  delict,  however  complex,  is  com- 
plained of,  but  one  right  of  action  is  disclosed.  If  the  facts 
disclose  more  than  one  distinct  primary  right  of  the  plaintiff, 
and  invasion  thereof  by  the  defendant,  whether  by  one  delict 
or  by  several ;  or  if  there  are  so  disclosed  two  or  more  dis- 
tinct invasions  by  the  defendant,  of  a  single  primary  right 
of  the  plaintiff,  more  than  one  right  of  action  is  disclosed, 
and  these  should  be  separately  stated.  This  is  a  plain  and 
simple  test  for  the  differentiation  of  causes  of  action. 

1  O.  &  M.  Ry.  Co.  V.  Dickerson,  in  fact  suffered  the  damage  he  was 
59  Ind.  317.  claiming.     And  in  an  action  by  a 

2  Drinkwater  v.  Dinsmore,  80  N.  married  woman  to  recover  dam- 
Y.  390.  The  court  ingeniously  dis-  ages  for  a  personal  injury,  it  was 
tinguish  this  case  from  the  class  of  held  t^at  she  could  not  recover  the 
cases  referred  to  above  ;  holding  physician's  and  nurse's  bills  as 
that  the  proof  of  payment  of  wages  items  of  damages,  because  she  was 
was  not  in  mitigation  of  damages  not  primarily  liable  for  them, 
actually  sustained,  but  was  simply  Moody  v.  Osgood,  50  Barb.  628. 

to  show  that  the  plaintiff  had  not 


463  DISCOVERING  RIGHT  OF  ACTION.  §439 

Whatever  facts  would,  if  stated  by  themselves,  entitle  one 
to  relief  by  action  should  be  stated  as  a  separate  cause  of 
action.  In  actions  for  legal  relief,  the  cause  of  action  rests 
so  completely  upon  the  operative  issuable  facts,  that  if  any 
one  of  them  be  denied,  and  not  sustained  by  proof,  recovery 
is  thereby  defeated.^  And  in  such  actions  a  cause  of  action 
is  double,  if  the  denial  of  any  one  material  operative  fact  in 
it  will  not  controvert  the  whole  claim  asserted.^ 

Sometimes  the  same  facts  may  be  a  requisite  part  of  each 
of  several  causes  of  action ;  and  sometimes  one  entire  cause 
of  action  may  be  a  necessary  part  of  another.  Such  cases 
are  to  be  distinguished  from  those  in  which  a  given  state  of 
facts  will  authorize  more  than  one  relief.  In  the  latter  class 
of  cases  there  should  be  but  one  cause  of  action ;  in  the 
former,  more  than  one. 

439.  Separate  Rights  of  Actions — Illustrative  Cases. — 
In  an  action  to  remove  a  nuisance,  for  damages,  and  for  in- 
junction, it  was  held  that  there  was  but  one  cause  of  action.^ 
Several  reliefs  were  demanded,  but  only  one  right,  and  one 
delict  were  stated.  Where  one  tenant  in  common  sued  his 
co-tenant  for  specific  performance  of  his  contract  to  convey, 
or  for  partition,  a  single  cause  of  action  was  held  to  be 
proper,  and  the  order  of  the  trial  court,  requiring  the  plaint- 
iff to  elect  the  action  to  be  prosecuted,  was  reversed,  on  the 
ground  that  the  defendant  has  nothing  to  do  with  the  form 
of  the  relief  demanded,  and  that  where  the  facts  stated  may 
constitute  either  of  two  actions,  which  of  the  two  is  the  prop- 
er one  is  to  be  determined  on  the  trial.*  But  here  were  two 
rights,  one  based  upon  contract,  the  other  upon  ownership  in 
common ;  and  there  were  two  delicts,  one  a  breach  of  con- 
tract, the  other  a  failure  or  inability  to  effect  voluntary  par- 
tition. It  was  not  a  case  where  the  same  facts  constitute 
either  of  two  actions.  I'or  specific  performance,  the  con- 
tract must  be  stated,  and  nldntiff's  ownership  of  a  moiety 
need  not  be  stated ;  while  for  partition,  the  ownership  must 

1  Pom.  Rem.  527.  '  Davis  v.  Lambertson,  56  Barb. 

2  Per  Campbell,  J.,  in  People  v.    480. 

Ry.  Co.,  13  Mich.  389.  «  Hall  v.  Hall,  38  How.  Pr.  97. 


§  440  APPLICATION  OF  PRINCIPLES.  4G4 

be  stated,  and  a  statement  of  the  contract  would  be  surplus- 
age. So  that  a  statement  of  facts  that  would  authoiize  the 
relief  of  specific  performance  would  not  authorize  partition^ 
and  vice  versa.  Clearly  there  were  two  rights  of  action,  and 
these  should  not  be  made  available  in  a  single  cause  of 
action. 

An  action  for  specific  performance  of  a  contract  to  convey 
land,  and  praying  damages,  if,  for  sufficient  reason,  perform- 
ance could  not  be  decreed,  involves  but  a  single  right  and 
a  single  delict,  and  requires  but  one  cause  of  action.  The 
prayer  for  alternative  relief  does  not  affect  the  cause  of  ac- 
tion.i  An  action  for  false  representations  in  the  sale  of  dis- 
eased sheep,  and  for  injury  to  other  sheep,  caused  by  com- 
munication of  the  disease  to  them,  states  but  one  cause  of 
action.*  The  communication  of  the  disease  is  only  a  cir- 
cumstance showing  special  damage.^  A  complaint  for  mali- 
cious prosecution,  alleging  that  defendant  made  an  affidavit 
charging  plaintiff  with  forgery,  caused  a  warrant  to  issue 
thereon,  testified  against  plaintiff  before  the  magistrate, 
appeared  before  the  grand  jury  and  procured  an  indictment 
against  him,  whereon  he  was  tried,  acquitted,  and  discharged, 
contains  but  a  single  cause  of  action,  with  special  acts  of 
wrong  and  damage.* 

Where  a  debtor  conveys  land  in  fraud  of  creditors,  and 
the  title  has  passed  by  different  deeds  to  different  persons, 
all  may  be  joined  as  defendants  in  an  action  to  set  aside  the 
deeds,  because  they  all  have  a  common  interest  in  respect  of 
the  fraud;  and  the  complaint  in  such  case  should  contain 
but  one  cause  of  action.^ 

440.  Separate  Rights  of  Action — Illustrative  Cases, 
Continued. — A  mare  and  colt  went  upon  a  railroad  track 
at  the  same  time  and  place,  and  both  ran  on  the  track  before 
an  approaching  train.  The  colt  was  struck  and  killed,  and 
about  thirty  rods  from  where  this  occurred  the  mare  was 
struck  and  injured.     The  owner  of  both  animals  sued  the 

»  Henry  v.  McKittrick,  42  Kan.        a  Packard  v.  Slack,  32  Vt.  9. 
485.  *  Schenck  v.  Butsch,  32  Ind.  338. 

«  Wilcox  V.  McCk)y,  21  O.  S.  655.        '  Rinehart  v.  Long,  95  Mo.  396. 


465  DISCOVERING  RIGHT  OF  ACTION.  §  441_ 

railroad  company  for  the  value  of  the  colt,  and  recovered 
judgment,  which  was  paid  by  the  company.  The  mare  after- 
ward died  from  the  injuries  so  received,  and  in  an  action  to 
recover  lier  value,  the  comj)any  pleaded  the  former  recovery 
in  bar,  on  the  theory  that  there  was  but  one  right  of  action, 
and  that  hence  there  could  be  but  one  recovery.  It  was  held 
that  these  were  separate  and  independent  rights  of  action ; 
that  they  might  be  enfoi-ced  in  the  same  action,  or  in  sepa- 
rate actions  ;  and  that  the  first  recovery  did  not  bar  a  recovery 
in  the  second  action.^  The  court  recognized  the  rule  that 
there  can  be  but  one  satisfaction  for  a  tort,  but  held  that 
these  injuries  were  so  separated,  in  distance  and  in  time,  as 
to  be  separate  and  distinct  acts  of  negligence,  and  to  furnish 
distinct  rights  of  recovery. 

Where  one  tenant  in  common  of  land  casts  a  cloud  upon 
the  title  of  his  co-tenant,  and  by  the  same  fraudulent  act 
attempts  to  deprive  him  of  his  interest  in  partnership  assets, 
the  latter  has  two  rights  of  action  against  such  wrong-doer. 
He  may  have  the  cloud  upon  his  title  removed,  by  an  action 
for  that  purpose  ;  and  he  may  thereafter  maintain  an  action 
to  compel  an  accounting  for  the  partnership  assets,  the  part- 
nership having  ceased,  and  its  debts  having  been  paid.^  In 
such  case  there  is  but  one  tortious  act,  but  it  invades  two 
separate  and  independent  primary  rights. 

441.  Separate  Rights  of  Action — Illustrative  Cases, 
Continued. — Where  the  defendant  so  negligently  managed 
his  steamboat  as  to  run  down  plaintiff's  sailboat,  and  injured 
the  plaintiff  and  the  boat,  it  was  held  that  as  the  plaintiff 
could  not  divide  the  tort  and  have  two  actions,  one  for  injury 
to  the  person,  and  the  other  for  injury  to  the  property,  he 
may  not  make  two  causes  of  action  in  one  suit.^  An  action 
for  negligently  driving  against  and  injuring  the  plaintiff  and 
his  horse  and  carriage  was  held  to  embrace  but  one  right  of 
action.*     These  cases  are  clearly  wrong  upon  principle.     Two 

iRy.  Co.  V.  Scammon,  41  Kan.  Trask    v.   Ry.  Co.,    2  Allen,   331; 

521.  Doran  v.  Cohen,  147  Mass.  312. 

2  HoUoway  v.  Holloway,  99  Mo.  *  Howe  v.   Peckham,   10    Barb. 

305.  656. 

»  Bennet  v.  Hood,  1  Allen,  47 ; 
30 


§441  APPLICATION  OF  PRINCIPLES.  466 

distinct  rights — the  right  of  personal  security  and  the  right 
of  property — were  here  invaded  by  a  single  delict,  which 
gave  rise  to  two  remedial  rights.  In  asserting  one  of  these, 
ownership  of  property  and  injury  thereto  must  be  alleged 
and  proved;  in  asserting  the  other,  injury  to  the  person 
must  be  alleged  and  proved ;  and  different  rules  of  damage 
govern  the  measure  of  recovery  for  the  two  injuries. 

Upon  a  state  of  facts  precisely  like  those  last  stated,  the 
plaintiff  sued  and  recovered  for  the  injury  to  his  carriage, 
and  afterward  sued  for  the  injury  to  his  person.  Held,  by 
the  English  Court  of  Appeal,  that  the  former  recovery  was 
not  a  bar  to  the  latter  action,  for  the  reason  that  the  injury 
to  the  property  and  the  injury  to  the  person,  although  occa- 
sioned by  the  same  wrongful  act,  are  infringements  of  differ- 
ent rights,  and  therefore  give  rise  to  distinct  rights  of  action. 
In  the  opinion,  the  court  say :  "  The  question  is,  whether 
there  are  two  causes  [rights]  of  action  ;  if  there  is  but  one, 
the  present  suit  is  not  maintainable.  .  .  .  The  owner  of  prop- 
erty has  a  right  to  have  it  kept  free  from  damage.  The 
plaintiff  has  brought  the  present  action  on  the  ground  that 
he  has  been  injured  in  his  person.  He  has  the  right  to  be 
unmolested  in  all  his  bodily  powers.  The  collision  with  the 
defendant's  van  did  not  give  rise  to  only  one  cause  [right] 
of  action.  The  plaintiff  sustained  bodily  injuries,  he  was 
injured  in  a  distinct  right,  and  became  entitled  to  sue  upon 
a  cause  of  action  distinct  from  the  cause  of  action  in  respect 
of  the  damage  to  his  goods;  therefore,  the  plaintiff  is  at 
liberty  to  maintain  the  present  action.^ 

Where  husband  and  wife  were  at  the  same  time  injured 
by  the  same  negligent  act  of  a  street  railway  company,  a 
recover}'-  by  the  husband  for  the  injury  to  his  person  was 
held  not  to  bar  a  subsequent  action  by  him  to  recover  for  the 
loss  of  the  society  and  the  services  of  his  wife,  caused  by  the 
injury  to  her  person,  and  for  expenses  in  effecting  her  cure.^ 

1  Brunsden  vr  Humphrey,  14  Q.  &  P.  R.  Ry.  Co.,  25  Vt.  377.  Con- 
B.  D.  141.     (A.  D.  1884.)  tra,  C.  H.  &  D.  Ry.  Co.  v.  Chester, 

2  Skoglund  V.  Minn.   St.  Ry.  Co.,  57  Ind.  297. 
45  Minn.  330.  Cf.  Newbury  v.  C. 


467  DISCOVERING  RIGHT  OF  ACTION.  g  442 

There  was  but  one  tortious  act  of  the  defendant,  tut  it  in- 
vaded separate  and  distinct  rights  of  the  plaintiff. 

These  contrary  holdings,  apparently  the  result  of  different 
views  as  to  what  constitutes  a  right  of  action,  really  result 
from  the  controlling  application  of  different  principles  in  the 
determination  of  the  same  question.  Some  courts,  guided 
only  by  the  doctrine  that  a  single  tort  ma}'  not  be  divided 
and  made  the  ground  of  two  actions,  have  held  that  where 
only  one  tortious  act  is  complained  of,  only  one  action  can  be 
maintained,  and  only  one  cause  of  action  stated.  These 
courts  have  lost  sight  of  the  constituent  elements  of  a  right 
of  action,  and  of  the  reasons  for  stating  causes  of  action 
separately. 

442.  Separate  Rights  of  Action — Illustrative  Cases, 
Continued. — In  an  action  for  injury  to  the  person  by  negli- 
gence of  the  defendant,  allegations  of  loss  of  services,  and 
incurring  of  expenses  for  medicine,  etc.,  are  only  in  aggrava- 
tion, and  are  properly  included  in  a  single  cause  of  action.^ 
Allegations  that  the  defendant  unlawfully  broke  and  entered 
plaintiff's  dwelling,  and  removed  the  roof,  whereby  his  prop- 
erty and  family  were  exposed,  and  he  was  made  sick,  state 
but  a  single  cause  of  action,  with  circumstances  of  special 
damage ;  and  in  such  case,  if  the  trespass,  which  is  the  gist 
of  the  action,  be  not  proved,  there  can  be  no  recovery  on  ac- 
count of  any  of  the  alleged  consequential  damages.^  But 
allegations  that  the  defendant  broke  and  entered  plaintiff's 
mill,  seized  and  dragged  him  out,  and  beat  and  wounded 
him,  make  the  personal  injury,  not  a  mere  appendage  of  the 
trespass,  but  a  substantive  cause  of  action,  for  which  there 
may  be  recovery,  even  though  the  entry  of  the  mill  be  justi- 
fied.3  This  is  clearly  so,  for  the  personal  injury  is  not  stated 
as  a  consequence  of  the  trespass,  as  in  the  last  preceding 
case,  but  as  the  immediate  result  of  a  separate  act  of  the 
defendant.  Two  distinct  rights  being  invaded,  by  separate 
and  distinct  wrongful  acts,  there  should  be  two  causes  of 
action. 

1  Rv.  Co,  V.  Chester,  57  Ind.  397.        •  Wright  v.   Chandler,   4  Bibb, 
'•^  Brown  v.  Lake.  29  O.  S.  G4. 


g  443  APPLICATION  OF  PRINCIPLES.  468 

Distinct  libels,  published  at  different  times,  in  the  same 
paper,  are  distinct  invasions  of  the  same  right,  and  each 
should  be  stated  in  a  separate  cause  of  action  ;  ^  and  the  same 
is  true  of  slanderous  words  spoken  at  different  times,  although 
the  same  words  are  spoken  each  time  ;  ^  but  defamatory 
charges  of  distinct  offenses,  spoken  at  the  same  time,  have 
been  held  to  constitute  but  a  single  right  of  action  .^ 

443.  Disparting  a  Right  of  Action. — It  is  a  well-settled 
doctrine  that  a  judgment  concludes  the  rights  of  the  parties 
in  respect  to  the  right  of  action  on  which  it  is  rendered ;  and 
this,  whether  tlie  suit  embrace  the  whole,  or  only  part,  of 
the  demand  constituting  such  right  of  action.  It  results 
from  this  principle,  that  an  entire  claim,  whether  founded 
upon  contract  or  upon  tort,  can  not  be  divided  and  made  the 
basis  of  several  actions  ;  and  if  several  actions  be  brought  on 
the  different  parts  of  an  entire  demand,  the  pendency  of 
one  may  be  pleaded  in  abatement  in  another,  and  judgment 
on  the  merits  in  one  may  be  pleaded  in  bar  in  another.  In 
such  case,  the  original  demand,  in  its  totality,  is  merged  in 
the  judgment — transit  in  rem  judicatam.^  Some  illustrations 
of  the  application  of  this  rule  will  show  its  practical  im- 
portance. 

Where  there  are  several  breaches  of  several  and  distinct 
covenants  contained  in  the  same  instrument,  and  suit  is 
brought  on  some  of  the  breaches,  and  pending  such  action 
another  is  commenced  on  other  breaches  existing  when  the 
former  action  was  begun,  the  former  action  may  be  pleaded 
in  abatement  of  the  latter  action  ;  ^  because  the  several  claims 
already  due  under  one  contract  are  deemed  one  entire  demand 
or  right  of  action.^ 

Where    labor   is    performed,  at  various  times,  under  one 

*  Fleischman  v.  Bennett,  87  N.  do  so,  a  recovery  in  one  suit,  though 
Y.  231.  for  less  than  the  whole  demand,  is 

2  Swinney  v.  Nave,  22  Ind.  178.  a  bar  to  the  second."     1  Ch.  PL 

*  Cracraft  v.  Cochran,  16  Iowa,  199,  note  ;  Freeman  on  Judgments, 
301  ;  Swinney  v.  Nave,  22  Ind.  178.  238. 

*  "  A  plaintiff  may  not  split  up  ^  Bendernagle  v.  Cocks,  19  Wend. 
an  entire  cause  of  action,  so  as  to  207. 

maintain  two  suits  upon  it ;  if  he        ®  Freeman  on  Judgments,  240. 


469  DISCOVERING  RIGHT  OF  ACTION.  §  444 

entire  contract,  and  recovery  by  action  is  had  for  a  part 
thereof,  a  second  action  for  the  residue  can  not  be  maintained, 
even  on  clear  proof  that  no  evidence  as  to  such  residue  was 
offered  in  the  first  action.^ 

444.  Disparting  a  Right  of  Action,  Continued. — As  a 
general  rule,  where  a  contract  calls  for  the  doing  of  some- 
thing that  involves  numerous  conditions  and  requirements, — 
such  as  the  construction  of  a  building,  or  of  a  machine, — 
several  breaches  thereof,  being  a  violation  of  the  general 
right  to  have  the  contract  performed,  become  a  single  demand 
in  solido,  and  constitute  but  a  single  right  of  action.  Thus, 
in  a  complaint  on  a  contract  to  construct  a  building,  allega- 
tions of  failure  in  point  of  time,  of  defects  in  materials,  in 
construction,  and  in  workmanship,  are  properly  embodied  in 
a  single  cause  of  action.^  So,  also,  where  several  assessments 
are  made  on  a  stockholder,  in  payment  of  his  subscription, 
each  call,  as  made,  is  a  distinct  and  separate  demand,  and 
constitutes,  when  due  \nd  unpaid,  a  right  of  action  ;  but 
after  several  calls  have  been  made,  and  are  due  and  unpaid, 
they  are  in  the  nature  of  an  account  made  at  several  times, 
and  all  the  items  taken  together,  constitute  a  single  indebted- 
ness on  one  contract,  and  should  be  embodied  in  one  cause 
of  action  .3 

"  Where  there  is  an  account  for  goods  sold  or  labor  per- 
formed, where  money  has  been  lent  to  or  paid  for  the  use  of 
a  party  at  different  times,  or  several  items  of  claim  spring  in 
any  way  from  contract,  whether  one  only  or  separate  rights 
of  action  exist,  will  depend  upon  whether  the  case  is  covered 
by  one  or  by  separate  contracts.  The  several  items  may 
have  their  origin  in  one   contract,  as  on  an  agreement  to  sell 

^  Logan  V.    Caffrey,   30  Pa.    St.  during  the  service.     Perry  v.  Dick- 

196.     Of  course,  if  one  holds  several  erson,  85  N.  Y.  345. 

distinct  demands  against  the  same  ^  Comrs.  v.  Plumb,  20  Kan.  147  ; 

person,  he  may    recover   on  one,  Madge  v.  Puig,  12  Hun,  15 ;  Fisk 

and  then  on  another,  in  separate  v.  Tank,  12  "Wis.  276 ;  Roehring  v. 

actions.     Thus,  a  recovery  of  dam-  Huebschmann,  34  Wis.  185  ;  Wil- 

ages  for  the  wrongful  dismissal  of  cox  v.  Cohn,  5  Blatch.  346. 

the  plaintiff  from  defendant's  serv-  ^  Hotel  Co.  v.  Sigement,  53  Mo. 

ice,  was  held  not  to  bar  a  subse-  176. 
quent    action    for    wages    earned 


g  445  APPLICATION  OF  PRINCIPLES.  470 

and  deliver  goods,  or  perform  work,  or  advance  money ;  and 
usually,  in  the  case  of  a  running  account,  it  may  be  fairly 
implied  that  it  is  in  pursuance  of  an  agreement  that  an  account 
may  be  opened  and  continued,  either  for  a  definite  period, 
or  at  the  pleasure  of  one  or  both  of  the  parties.  But  there 
must  be  either  an  express  contract,  or  the  circumstances 
must  be  such  as  to  raise  an  implied  contract,  embracing  all 
the  items,  to  make  them,  where  they  arise  at  different  times, 
a  single  or  entire  demand  or  right  of  action."  ^  In  the  case 
from  which  the  foregoing  is  quoted,  the  business  of  the 
plaintiff  consisted  of  two  branches,  kept,  and  designed  to  be 
kept,  entirely  distinct.  The  defendant  made  an  account  in 
each  branch,  one  of  which  was  concluded  before  the  othei 
was  opened  ;  and  there  was  no  express  contract  connecting 
the  two  accounts,  nor  did  the  circumstances  warrant  the  pre- 
sumption of  a  contract  so  connecting  them.  It  was  held  that 
the  accounts  constituted  two  several  rights  of  action.^ 

445.  Disparting  a  Right  of  l^ction,  Continued. — 
Where  one  covenanted,  in  1822,  to  furnish  a  continuous  sup- 
ply of  water  for  the  mill  of  another,  and  totally  failed  to 
perform  his  covenant  after  1826,  the  mill-owner  brought  an 
action  in  1835,  and  recovered  the  damages  sustained  by  him 
up  to  that  time.  In  a  subsequent  action  for  damages  sus- 
tained after  1835,  the  former  recovery  was  held  to  be  a  bar.^ 
The  total  breach  in  1826  put  an  end  to  the  contract,  and 
gave  the  plaintiff  a  right  of  action  for  an  equivalent  in 
damages.  He  obtained  such  equivalent,  or  should  have  ob- 
tained it,  in  the  former  suit ;  and  to  allow  a  second  recovery 
would  be  to  split  an  entire  right  of  action. 

Where  an  entire  demand  arising  from  tort  is  dissevered, 
and  judgment  recovered  for  a  part  thereof,  the  entire  demand 
is,  in  like  manner,  res  judicata.     The  rule  is  said  to  be  witb. 

^  Per  Strong,    J.,  in    Secor    v.  item  of  an  account  from  its  date, 

Sturgis,  16  N.  Y.  548.  because    a    right    of    action   then 

2  Secor  V.  Sturgis,  16  N.  Y.  554.  accrues  thereon.    See,  also,  Ang. 

Cf.  Nathans  v.  Hope,  77  N.  Y.  420  ;  Lim.  274. 

Ct)urson  v.  Courson,  19  O.  S.  454  ;  ^  pish  v.  Folley,  6  Hill,  54.     Cf. 

liolfling  that  the  statute  of  limita-  Stein  v.  Rose,  17  O.  S.  471  ;  James 

tions  begins  to  run  against  each  v.  Allen  County,  44  O.  S.  226. 


471  DISCOVERING  RIGHT  OF  ACTION.  §446 

out  exception,  that  if  several  chattels  are  taken  by  one 
tortious  act,  and  the  owner  recovers  judgment  for  part  of  the 
property  so  taken,  whether  in  trespass,  in  trover,  or  in  re- 
plevin, such  judgment  merges  the  entire  demand,  and  is  a 
bar  to  a  subsequent  action.^ 

446.  Disparting  a  Right  of  Action,  Continued. — If  a 
fire  be  started  from  a  locomotive  engine,  by  the  actionable 
negligence  of  its  owner,  all  damages  resulting  therefrom  to 
one  person  must  be  recovered  in  one  action,  although  the  fire 
be  communicated  to  two  tracts  of  land  situated  a  considerable 
distance  from  each  other.^  The  fact  that  damages  are  not 
apparent  when  the  first  action  is  tried  does  not  form  an  ex- 
ception to  the  rule.^  Thus,  where  defendant  had  wrongfully 
made  an  excavation  into  plaintiff's  coal  mine,  through  wliich 
water  flowed,  a  recovery  for  making  the  aperture  was  held  to 
bar  a  subsequent  action  for  damages  occasioned  by  the  flow- 
ing of  water  through  the  aperture  into  the  mine*  So,  also, 
where  a  plaintiff  recovered  judgment  for  assault  and  battery, 
and  thereafter  parts  of  his  skull  came  out,  and  he  sought  to 
recover  for  such  effects  of  the  assault,  it  was  held  that  the 
former  recovery  was  a  bar.^ 

Where  an  entire  demand  has  been  severed  and  a  judgment 
for  part  of  it  is  pleaded  in  bar  of  a  second  action  for  the  resi- 
due, such  plea  has  been  regarded  with  disfavor,  unless  asserted 
at  the  earliest  opportunity.  Where  four  monthly  installments 
of  rent  were  due  and  unpaid,  and  the  landlord  brought  two 
actions  at  the  same  time,  in  a  justice's  court,  each  for  two 
months'  rent,  the  defendant  appeared  and  defended  in  both 
actions,  without  objecting  to  the  severance.  The  plaintiff 
recovered  judgment  in  both  cases,  and  the  defendant  paid  the 
judgment  for  the  earlier  months,  appealed  the  other  case,  and 

^  Freeman  on  Judgments,   241  ;  ^  Fowle  v.  New  Haven,  107  Mass. 

Union  Ry.  Co.  v.  Traube,  59  Mo.  352  ;  Clegg  v.  Dearden,  12  Q.  B.  576. 

355  ;  O'Neal  v.  Brown,  21  Ala.  482  ;  *  Clegg  v.  Dearden,  12  Q.  B.  576. 

McCaffrey  v.  Carter,  125  Mass.  330  ;  ^  Fetter  v.  Beale,  1  Salk.  11.     Cf. 

Farrington   v.    Payne,   15   Johns.  Whitney  v.  Clarendon,  18  Vt.  252  ; 

432.  s.  c.  46  Am.  Dec.  150. 

2  Knowlton  v.  Ey.  Co.,  147  Mass. 
606. 


g447  APPLICATION  OF  PRINCIPLES.  472 

in  the  appellate  court  pleaded  the  satisfied  judgment  in  bar. 
This  defense  was  held  insufficient,  on  the  ground  that  "  when 
a  defense  is  purely  technical,  the  conduct  of  the  party  pre- 
senting it  should  be  scrutinized,  and  if  it  does  not  appear 
that  he  set  it  up  at  his  first  opportunity,  it  ought  not  after- 
ward to  avail  him."  ^ 

447.  Continuous  and  Recurring  Injuries. — As  a  rule, 
judgments  relate  to  the  situation  of  the  parties  at  the  com- 
mencement qI  the  action  ;  and  in  personal  actions,  damages 
are  generally  allowed  only  to  that  date.  If  the  injury  sued 
for  be  continuing,  but  not  permanent,  subsequent  loss  must 
be  compensated  in  subsequent  actions,  brought  after  the  loss 
has  been  sustained  ;2  if  the  injury,  though  continuing,  be 
permanent  in  character,  it  must  be  fully  compensated  in 
one  action,  and  one  recovery  bars  a  subsequent  action  for 
subsequent  loss.^ 

Injury  caused  by  a  nuisance  may  be  of  two  kinds — that 
produced  by  the  act,  and  that  resulting  from  a  continuance 
of  the  nuisance.  He  who  creates  a  nuisance  is  under  a  con- 
tinuing obligation  to  abate  it.  Therefore  only  the  damage 
done  at  the  date  of  the  commencement  of  the  action  can  be 
compensated  in  that  suit.  In  a  second  action,  the  material 
inquiry  is,  whether  the  damages  on  which  it  is  based  are 
attributable  to  the  original  act,  or  to  the  continuing  of  the 
state  of  facts  produced  by  that  act.  In  the  latter  case,  a  new 
right  has  arisen,  and  a  new  action  will  lie.*  Where  the 
nuisance  is  of  a  permanent  character,  and  is  necessarily  and 
continuously  injurious,  the  whole  damage  is  an  original  in- 
jury, and  may  be  at  once  compensated.  The  damage  caused 
by  the  building  of  a  railroad  is  of  this  character.  But  if  the 
continuance  will  not  necessarily  be  injurious,  the  injury  to  be 
compensated  in  a  suit  is  what  has  then  been  suffered.  Thus, 
if  an  obstruction  be  built  that  will  cause  damage  only  in  time 

1  Fox  V.  Althorp,  40  O.  S.  322.  9  StodghiU  v.  B.  &  Q.  Ry.  Co.,  53 

2  Sedg.  on  Dam.   154,  155  ;  Canal  Iowa,  341  ;  3  Suth.  on  Dam.  372 ; 
V.  Wright,  1  Zab.  469  ;  Powers  v.  Marble  v.  Keyes,  9  Gray,  221. 
Ware,   4  Pick.    105  ;    Brewster  v.  *  Freeman  on  Judgments,  242. 
Svissex  Ry.  Co.,  11  Vroom,  57. 


473  DISCOVERING  RIGHT  OF  ACTION.  §448 

of  floods  in  a  stream,  each  recurring  damage  gives  a  new 
light  of  action. 

448.  Election  of  Remedies. — Sometimes  a  right  of  action 
will  entitle  the  plaintiff  to  either  of  two  remedies ;  in  which 
case  he  may  pursue  the  one  or  the  other,  as  he  may  elect.^ 
Under  the  new  procedure,  as  under  the  old,  one  injured  by  a 
tort  that  enriches  the  tort-feasor  may  elect  to  sue  in  tort,  for 
the  damages,  or  he  may  waive  damages  for  the  tort,  and  sue 
in  contract,  for  the  value,  or  the  proceeds,  of  the  property .^ 
This  right  of  election  arises  where  personal  property  has  been 
wrongfully  converted  ;  ^  where  there  is  a  contract,  and  also  a 
legal  duty  incident  thereto,  as  in  the  case  of  common  carriers, 
or  of  professional  men ;  *  where  money  has  been  obtained  by 
false  representations  ;  ^  and  where  goods  have  been  sold  on  a 
credit  obtained  by  fraudulent  representations.^ 

In  some  cases  the  plaintiff  may  have  a  right  of  election 
between  a  remedy  at  law  and  a  remedy  in  equity.  For 
example,  where  the  vendor  of  lands  refuses  to  convey,  the 
vendee  may  have  the  equitable  relief  of  specific  performance, 
or  the  legal  relief  in  damages.'^ 

Where  a  contractor  is,  by  the  wrongful  act  of  the  other  con- 
tracting party,  prevented  from  completing  his  work,  he  may 
elect  to  sue  for  damages  for  a  breach  of  the  contract,  or  he 
may  sue  for  the  value  of  the  work  he  has  already  done.* 
So,  also,  an  employe  wrongfully  discharged  during  his  term 

1  Steph.  PI.  53-60.  577  ;  HaU  v.  Gillmore,  40  Me.  578 ; 

2  Ante,  95,  326,  377,  419.  Hennequin  v.  Naylor,  24  N.  Y.  139 ; 
8  Ante,  419,  and  cases  cited.  Bell  v.  Ellis,  33  Cal.  620.  Cf.  Tal- 
*  Pa.  Ry.  Co.  v.  Peoples,  31  O.  S.  cott  v.  Henderson,  31  O.  S.  162. 

637;  Emigh  V.  Ry.  Co.,4Biss.  114;        ^3  Wait  Ac.  &  Def.    178;    Per 

Church  V.  Mumford,  11  Johns.  479.  Hitchcock,  J.,  in  Howard  v.  Bab- 

Cf.  Campbell  v.  Perkins,  8  N.  Y.  cock,  7  Ohio,  Pt.   2,   73,   81.     Cf. 

430  ;  Brown  v.  Treat.  1  Hill,  225.  Currier  v.  Rosebrooks,  48  Vt.  34. 

6  Byxbie  v.  Wood,  24  N.  Y.  607.        8  Chamberlin  v.  Scott,  33  Yt.  80 ; 

Cf.  Union  Bk,  v.  Mott,  27  N.  Y.  Rogers  v.  Parham,  8  Ga.  190  ;  Mer- 

633.  rill  V.  Ry.  Co.,   16  Wend.  586  ;  Mc- 

«  Wiggins  V.  Sickel,  33  How.  Pr.  Cullough  v.    Baker,   47  Mo.   401 ; 

174.     Cf.  Nat.  Trust  Co!  v.  Gleason,  Fitzgerald  v.  Eayward,  50  Mo.  516. 

77  N.  Y.  400.     Or  the  seller  may  Cf.  Clendennen  v.  Paulsel,  3  Mo. 

rescind  the  sale,  and  replevy  the  230. 
goods.  Farley  v.  Lincoln,  51  N.  H. 


§448  APPLICATION  OF  PRINCIPLES.  474 

of  employment  may  sue  for  damages  for  the  breach  of  con- 
tract, or  he  may  sue  on  a  quantum  meruit ;  ^  and  it  has  been 
held  that  such  discharged  employe,  if  he  remain  willing 
and  ready  to  render  service,  may  recover  the  stipulated 
wages,  as  if  he  had  continued  in  the  employment ;  ^  but  this 
right  to  sue  for  unearned  wages,  resting  upon  the  doctrine  of 
constructive  service,  has  been  rejected  in  many  of  the  more 
recent  cases.^ 

One  prevented,  by  sickness,  from  completing  his  contract 
for  personal  services  can  recover  on  a  quantum  meruit  for  the 
work  done ;  but  he  can  not  recover  on  the  contract.^  The 
complaint  in  such  case  need  not  allege  the  non-performance 
and  the  excuse ;  these  are  matters  for  reply .^ 

It  has  been  held  an  action  ex  contractu  to  recover  money 
paid  by  a  bank  to  defendant,  and  by  him  had  and  received  to 
the  use  of  plaintiff,  is  an  election  to  ratify  the  payment,  and 
precludes  a  subsequent  action  to  recover  the  money  from  the 
bank  on  the  ground  that  its  payment  was  unauthorized.® 

In  a  cause  that  may  be  appealed,  the  defeated  party  may 
sometimes  have  a  choice  between  an  appeal  and  a  review  in 
error.  In  such  case,  he  may  not  prosecute  both  appeal  and 
error,  either  concurrently  or  successively ;  and  the  election 
to  pursue  the  one  is  a  waiver  of  the  right  to  pursue  the 
other.^ 

^  Knutson  v.  Knapp,  35  Wis.  86.      the  choice  of  remedies  by  the  veu- 

2  Gandell  v.  Pontigny,  4  Camp,  dor  and  by  the  vendee  of  personal 
375  ;  Strauss  v.   Meertief,  64  Ala.     property,  see  post,  476. 

299  ;  Bowman  v.  Holladay,  3  Oreg.  ^  To  prosecute  both  appeal  and 

182 ;  Bliss  PI.  17.  error,    would    be    vexatious,    and 

3  Wood's  Mayne  on  Dam.,  sec.  would  be  taking  two  chances  at 
280 ;  Wood's  Master  and  Servant,  once.  As  plaintiff  in  error,  the 
246  ;  Howard  v.  Daly,  61  N.  Y.  party  would  complain  of  a  judg- 
362;  Per  Erle,  J. ,  in  Goodman  v.  ment  which,  by  the  appeal,  had 
Pocock,  15  Ad.  &  Ell.  (N.  S.)  576  ;  been  vacated  or  suspended.  El- 
James  v.  Allen  Co.,  44  O.  S.  226,  liott's  App.  Proc.  149,  530;  Ins 
and  cases  cited ;  Willoughby  v.  Co.  v.  Routledge,  7  Ind.  25.  Cf. 
Thomas,  24  Gratt.  522 ;  Miller  v.  Bartges  v.  O'Neil,  13  O.  S.  72 ; 
Goddard,  34  Me.  102.  Schweickhart  v.  Stuewe,  75  Wis. 

*  Green  v.  Gilbert,  21  Wis.  395.        157  ;  Nau  v.  Gobrecht,  8  O.  C.  CI. 
6  Wolfe  V.  Howes,  20  N.  Y.  197.      518. 
«  Crook  V.  Bank,  83  Wis.  31.     For 


475  DISCOVERING  RIGHT  OF  ACTION.  §  448 

The  choice  between  remedies  is  usually  to  be  determined 
by  considerations  of  expediency.  For  example,  one  remedy 
may  be  subject  to  the  bar  of  the  statute  of  limitations,  while 
the  other  would  not  be  ;  replevin  of  goods,  or  specific  per- 
formance, may  be  a  more  available  remedy  than  a  judgment 
for  money,  because  of  the  insolvency  of  the  defendant,  or 
because  of  his  right  to  exemptions  from  execution  ;  and  where 
a  tort-feasor  has  sold  property  for  more  than  its  value,  an 
.  action  for  money  had  and  received  might  be  preferable  to  an 
action  in  tort. 


CHAPTER  XXVI. 

THE  PARTIES  TO  AN  ACTION. 

449.  Parties,  Privies,  and  Strangers. — Having  differ- 
entiated the  facts  of  a  given  transaction,  and  having  deter- 
mined, pursuant  to  the  rules  and  suggestions  hereinbefore 
given,  that  a  right  of  action  exists,  the  next  preliminary  in- 
quiry in  the  bringing  of  an  action  will  be  as  to  what  persons 
should  be  made  parties  thereto. 

With  reference  to  an  action,  persons  are  parties,  privies,  or 
strangers.  Parties  are  those  who  have  a  right  to  participate 
in  the  proceedings — to  assert  a  demand  or  make  defense,  to 
introduce  testimony,  and  to  appeal  from  the  dec''^V)n.  Pri- 
vies are  those  who  are  bound  by  the  proceedings  in  an  action 
because  of  their  successive  relationship  to  the  subject  ni  the 
action.^  Those  who  are  neither  parties  nor  privies,  are  stran- 
gers to  the  action.  Parties  are  always  bound  by  the  proceed- 
ings in  the  action ;  and  privies  are  so  bound  to  the  same  ex- 
tent as  are  the  parties  with  whom  they  are  in  privity.  The 
general  rule  is,  that  strangers  to  an  action  are  not  bound  by 
the  proceedings  or  judgment  therein ;  but  to  this  rule  there 
are  some  apparent  exceptions.  (1)  The  records  of  judicial 
proceedings  are  conclusive  proof,  inter  omnes,  that  what  is 
therein  recorded  actually  took  place.  (2)  Judgments  declar- 
atory of  the  status  of  a  person  or  thing  are  in  like  manner 
generally  conclusive  as  to  such  status.^ 

Those  who,  as  plaintiffs,  commence  an  action,  ipso  facto 
become  parties ;  and  those  named  in  the  complaint  as  defend- 
ants become  parties  when  brought  into  court  by  service,  or 
by  voluntary  appearance.  Pending  the  action,  others  may, 
by  order  of  the  court,  become  parties,  or  be  made  parties. 

1  Ante,  415.  ^  Big.    on  Estop.    150  ;    Best  on 

Ev.  590 ;  Reyn.  on  Ev.  34,  35. 
476 


477  PARTIES  TO  AN  ACTION.  §  450 

One  pei-son  may  sue  or  be  sued  alone,  or  several  may  join  as 
plaintiffs  or  as  defendants ;  sometimes  one  may  sue  or  defend 
for  himself  and  others  ;  and  a  person  may  sue  or  be  sued  in  a 
representative  capacity.  With  but  few  exceptions,  all  per- 
sons may  sue  and  may  be  sued  ;  and  as  the  law  undertakes  to 
protect  all  legal  rights,  and  to  redress  all  legal  injuries,  it  fol- 
lows, as  a  general  rule,  that  an  action  should  be  brought  by 
hira  whose  legal  right  has  been  violated  or  is  threatened,  and 
against  liim  who  violated  it  or  who  threatens  it.  In  otlier 
words,  tlie  general  rule  is,  that  the  person  of  inherence  should 
be  plaintiff ;  and  if  the  right  involved  is  in  personam^  the  per- 
son of  incidence  should  be  defendant,  or  if  the  right  is  in  rem, 
he  who  invades  or  threatens  it  should  be  defendant.  It  will 
be  seen  that  the  rules  relating  to  the  parties  to  an  action,  ex- 
cepting a  very  few  adopted  for  convenience  and  economy,  are 
drawn  from  the  substantive  law  creating  rights  and  impos- 
ing obligations. 

I.    OF    PARTIES   PLAINTIFF. 

450.  PlaintiflFs  in  Actions  ex  Contractn. — Except  when 
otherwise  provided  by  statute,  tlie  general  rule  of  the  Re- 
formed Procedure  is,  that  actions  must  be  brought  in  the 
name  of  the  real  party  in  interest.  When  an  action  on  con- 
tract concerns  only  the  original  parties  to  the  contract,  it  will 
not  be  difficult  to  determine  who  should  be  the  plaintiff.  At 
common  law,  no  one  could  sue  for  the  breach  of  a  contract 
who  was  not  a  party  thereto,  and  hence  an  action  on  contract, 
whether  express  or  implied,  had  to  be  brought  in  the  name  of 
him  who  held  the  legal  interest.^  This  requirement  com- 
pelled the  assignee  of  a  chose  in  action  to  sue  thereon  in  the 
name  of  his  assignor.  But  this  requirement,  which  resulted 
from  the  doctrine  of  privity ,2  was  more  formal  than  real ;  * 
for  though  the  assignment  of  a  contract  does  not  make  the 
assignee  a  party  to  the  contract,  it  does  entitle  him,  8ub  modo, 
to  the  rights  of  a  party  thereto.     But  under  the  modern  rule, 

1  1  Chit.  PI.  2  ;  Alton  v.  Midland        2  Ante,  418. 
Ry.  Co.,  19  C.  B.,  N.  S.,  213.  »  Steph.  PI.  30,  31. 


§450  APPLICATION  OF  PRINCIPLES.  47s 

the  assignee  of  a  chose  in  action  that  is  legally  assignable  * 
should  sue  thereon  in  his  own  narae.^ 

The  legal  title  to  negotiable  paper  payable  to  order  can  be 
transferred  only  by  indorsement;  but  one  may  become  the 
equitable  owner  thereof  without  indorsement,^  and  as  such 
equitable  owner  he  may  sue  thereon  in  his  own  name,  because ' 
he  is  the  real  party  in  interest.*  So,  also,  one  who  holds  the 
legal  title  to  such  paper,  by  indorsement  thereof,  though  it  be 
only  for  collection,  or  as  collateral  security,  may  sue  thereon 
in  his  own  name  ;  for,  having  the  legal  title,  and  being  enti- 
tled to  receive  the  money,  he  is  the  real  party  in  interest,^ 

An  assignment  of  part  of  an  entire  demand  is  void  at  law, 
unless  made  with  the  consent  of  the  debtor.®  At  common 
law,  the  assignee  of  part  of  an  entire  demand  could  not  re- 
cover on  it,  without  alleging  and  proving  that  it  was  made 
with  the  consent  of  the  debtor.  Under  the  modem  proced- 
ure, the  practice  is  not  entirely  uniform;  but  the  prevailing 
rule  seems  to  be,  that  the  allegation  of  the  debtor's  consent 
may  be  dispensed  with,  by  making  the  other  part-owner  a 

1  The  distinction  between  rights  assignee  of  a  chose  in  action  to 
in  action  that  are  assignable  and  bring  a  suit  in  his  own  name  in 
those  that  are  not  assignable  be-  cases  where,  by  the  common  law, 
longs  to  the  substantive  law,  and  no  assignment  would  be  recog- 
not  to  pleading  ;  for  the  codes  do  nized.  In  this  respect,  the  rules 
not  create  any  new  right  of  action,  of  equity  are  to  prevail,  and  the 
nor  make  that  assignable  which  assigneemay  sueinhis  ownname." 
'was  not  before  assignable.  Per    Gamble,  J.,    in    Walker    v. 

2  Mills  V.  Murry,  1  Neb.  327;  Mauro,  18  Mo.  564,  565.  "The 
^Canefox  v.  Anderson,  22  Mo.  347  ;  party  beneficially  interested, 
;Schnierv.  Fay,  12  Kan.  184  ;  Knad-  though  he  may  not  have  the  legal 
ler  v.  Sharp,  36  Iowa,  282,  235  ;  title,  may  sue  in  his  own  name. 
Long  V.  Heinrich,  4G  Mo.  603  ;  This  may  not  precisely  accord 
Lytle  V.  Lytle,  2  Met.  (Kj.)  127 ;  with  the  line  of  decisions  under 
Wheatley  v.  Strobe,  12  Cal.  92,  98.  other  codes,  but  we  think  it  liberal 

3  1  Dan.  Neg.  Instr.  664  a,  741.        and  right,  and  conducive  to  the 
Williams  V.  Norton,  3  Kan.  295  ;    practical    attainment  of  justice." 

Pease  v.  Rush,  2  Minn.  107  ;  White  Per  Dillon,  J.,  in  Cottle  v.  Cole, 

V.  Phelps,  14  Minn.  27  ;  Hancock  20  Iowa,  481,  486. 

V.  Ritchie,  11  Ind.  48.     "  The  effect  ^  Ante,  327,  and  cases  cited. 

of  our  new  code  of  practice,  in  ^  Mandeville  v.  Welch,  5  Wheat. 

abolishing  the  distinctions  between  288;  Bisph.  Prin.  Eq.  166. 

law  and  equit>',  is,  to  allow  the 


479  PARTIES  TO  AN  ACTION.  §451 

party,  so  as  to  save  the  obligor  from  liability  to  two  actions 
on  the  one  demand.^ 
451.  Plaintiffs  in  Actions  ex  Contractu,  Continued. — 

An  infant  has  the  same  right  to  sue  that  an  adult  has,  though, 
as  matter  of  form,  his  action  should  be  by  his  next  friend. 
But  the  father  of  an  infant,  being  entitled  to  his  services  and 
his  earnings,  is  the  proper  plaintiff  in  an  action  to  recover 
such  earnings,  unless  he  has  emancipated  the  child ;  in  which 
case  the  infant  should  sue.^ 

Liability  for  malpractice,  though  it  is  usually  an  incident 
of  contract,  is  not  dependent  on  privity  of  contract,  and  the 
injured  person  may  maintain  an  action,  though  the  employ- 
ment was  by  a  parent  or  friend.^  The  right  invaded  in  such 
case  is  not  strictly  a  contract  right. 

Where  a  promise  is  made,  on  a  valid  consideration,  to  one 
for  the  benefit  of  another,  the  one  for  whose  benefit  it  is  made 
is  the  real  party  in  interest,  and  he  may,  in  his  own  name, 
subject  to  some  qualifications,  bring  an  action  for  its  breach.* 

The  authorized  act  of  an  agent  is,  in  law,  the  act  of  his 
principal.  Quifacit  per  alium^  facit  per  se.^  Therefore,  the 
principal,  and  not  the  agent,  is  the  proper  person  to  sue  on 
an  obligation  made  to  an  agent  as  such.  And  this  is  so  as  to 
public  agents,  as  well  as  to  private  agents  ;  for  when  a  public 
agent  acts  by  legal  authority,  and  within  the  line  of  his  duty, 
his  contracts  are  public  and  not  personal.^ 

It  is  sometimes  provided  by  statute  that  the  trustee  of  an 
express  trust,  one  with  whom  a  contract  is  made  for  the 

1  Grain  v.  Aldrich,  28  Cal.  514 ;  cited ;  3  Pom.  Eq.  Jur.  1284  ;  Ry. 

lapping    V.    Dufify,   47    Ind.     51.  Co.  v.  Bank,  53  O.  S. 

Whether,  in  such  case,  the  assignor  ^  j  Chit.  PL  2,  note  1. 

and  his  assignee  of  part  of  the  de-  ^  Norton    v.   Sewall,    106    Mass. 

mand  are  joint  owners,  and  may  143 ;    Thomas    v.     "Winchester,    6 

be  joined  as  plaintiffs,  or  whether  N.  Y.  397. 

one  of  them    should   be  made  a  *  Ante,  420,  and  cases  cited.     See, 
defendant,  quoRre.     See  21  Cal.  152.  also,  Coleman  v.  Whitney,  20  Atl. 
As  to  whether  a  bank  check  is  an  Rep.  322.     Cf.  Townsend  v.  Back- 
assignment,  pro  tanto,  of  the  fund  ham,  143  N.  Y.  516. 
on  which  it  is  drawn,  see  2  Dan.  «  1  Chit.  PI.  34  a. 
Neg.  Instr.   1638,   1643,  and  cases  «  Comrs.  Canal  Fund  v.  Perry,  5 

Ohio,  57,  64. 


§452  APPLICATION  OF  PRINCIPLES.  4S0 

benefit  of  another,  or  one  expressly  authorized  by  statute, 
may  bring  an  action  without  joining  with  him  the  person  for 
whose  benefit  the  action  is  prosecuted.  Under  favor  of  such 
statute,  one  to  whom  a  note  is  made  payable  in  ti:;ust  for 
■others  may  sue  on  it  without  joining  them.^  And  where  a 
mortgage  is  made  to  one  in  trust  for  the  owners  of  the  notes 
thereby  secured,  he  may  in  like  manner  sue  thereon  without 
joining  them,  even  though  the  trust  relation  does  not  appear 
on  the  face  of  the  instrument.^  And  the  holders  of  the  notes 
being  the  real  parties  in  interest,  may  bring  the  action.^ 

452.  Plaintiffs  iu  Actions  ex  Delicto. — In  actions  founded 
upon  tort,  the  general  rule  is,  that  he  who  has  sustained  the 
injury  is  the  real  party  in  interest,  and  should  bring  the 
action.  In  case  of  injury  to,  or  conversion  of,  personal 
property,  owned  by  one,  and  rightfully  in  the  possession  of 
another,  each  may  be  entitled  to  an  action — the  one  for 
injury  to  his  possessory  right,  the  other  on  account  of  his 
reversionary  interest.*  One  in  possession  of  land  as  tenant 
may  sue  for  a  trespass  on  the  land  so  far  as  it  is  an  injury  to 
his  rights ;  and  the  landlord,  while  generally  he  can  not  sue 
for  trespass,  may  yet  maintain  an  action  for  injury  that  is  of 
•a  permanent  character,  affecting  his  estate.^  But  if  the  land 
be  in  the  possession  of  one  as  the  mere  servant  or  agent  of 
^the  owner,  the  latter  is  regarded  as  in  actual  possession,  and 
3ie  alone  can  sue. 

For  personal  injury  to  a  servant,  he  may  sue,  for  the  vio- 
lation of  his  right  of  personal  security ;  and  if  the  injury 
results  in  loss  of  services  to  the  master,  he  too  has  a  right  of 
action,  for  the  violation  of  his  proprietary  right  to  the  servicesj 
For  the  seduction  of  a  servant,  resulting  in  loss  of  services 
to  the  master,  he  has,  for  like  reason,  a  right  of  action  for 
such  loss  ;  but  the  servant,  by  consenting,  is  deprived  of 
remedy.      Volenti  non  Jit  injuria.^ 

1  Scantlin  v.  AlUson,  12  Kan.  85  ;  *  1  Chit.  PI.  62  ;  Mech.  on 
Nicolay  v.   Fritschee,  40   Mo.  67  ;    Agency,  765. 

Wolcott  V.  Standley,  62  Ind.  198.  ^  i  chit.  PI.  62,  63 ;  1  Add.  on 

2  Hays  V.  Gas.  Co.,  29  O.  S.  330.       Torts,  195. 

SEttlinger  V.  Ry.  Co.,  142  N.  Y.  e  Paul  v.  Frazier,  3  Mass.  71  ; 
189.  Broom  Max.  268. 


481  PARTIES  TO  AN  ACTION.  §453 

Only  a  few  of  the  rights  arising  from  torts  are  assignable 
so  as  to  authorize  the  assignee  to  sue  thereon  ;  the  general 
rule  being,  that  a  right  of  action  for  injury  to  property  sur- 
vives to  the  personal  representatives,  and  is  assignable,  while 
the  right  to  redress  for  a  personal  wrong — whether  to  pei-son 
or  to  reputation — dies  with  the  death  of  the  person,  and  is  not 
assignable.  This  general  rule,  to  which  there  are  few  ex- 
ceptions, practically  makes  the  assignability  of  a  right  of 
action  for  tort  depend  upon  whether  the  right  is  such  as 
would  survive  to  the  personal  representatives  of  the  injured 
person.^ 

n.    OF   PARTIES   DEFENDANT. 

453.  Some  General  Considerations. — In  determining 
who  should  be  made  parties  to  an  action,  it  must  be  borne  in 
mind  (1)  that  the  presence  of  necessary  parties  is  essential 
to  the  jurisdiction  of  the  court,  ^  and  (2)  that  only  parties 
and  their  privies  will  be  concluded  by  the  judgment ;  ^  and 
in  determining  who  should  be  made  defendants,  the  distinc- 
tion between  necessary  parties  and  proper  parties  should  not 
be  overlooked.  One  who  has,  or  claims,  an  interest  in  the 
controversy  adverse  to  the  plaintiff,  is  a  necessary  party ; 
while  one  whose  presence  is  requisite  only  to  a  full  and  com- 
plete determination  of  the  questions  involved,  is  a  proper 
party.  The  distinction  between  necessary  parties  and  proper 
parties  is  well  illustrated  by  an  action  to  foreclose  an  equity 
of  redemption,  explained  in  the  next  succeeding  section. 

In  actions  on  express  contracts,  the  agreement  itself  desig- 


1  3  Pom.  Eq.  Jur.  1275  ;  Tyson  v.  record,  are  as  much  bound  as  if 
McGuineas,  25  Wis.  656 ;  Byxbie  named  as  parties  in  the  record. 
V.  Wood,  24  N.  Y.  607;  Zabriskie  Courts  willlook  beyond  the  nominal 
V.  Smith,  13  N.  Y.  322 ;  McMahon  parties,  and  hold  those  concluded 
V.  Allen,  35  N.  Y.  403.  In  most  of  who  conducted,  directed,  and  con- 
the  states,  the  abatement  of  actions  trolled  the  proceedings.  Lovejoy 
and  of  rights  of  action  is  regulated  v,  Murray,  3  Wall.  1,  18  ;  Bachel- 
by  statute.  der  v.  Brown,  47  Mich.   366,  370  ; 

2  Post,  463,  464.  Palmer  v.    Hayes,   112    Ind.    289  ; 
*  It  has  been  held,  however,  that  Stoddard    v.   Thompson,  31   Iowa, 

persons   who   in   fact    control   the  82. 
proceedings,  though  not  parties  of 
31 


§453  APPLICATION  OF  PRINCIPLES.  482 

nates  the  parties  to  the  action ;  he  who  assumed  the  obliga- 
tion, though  not  beneficially  interested,  is  the  party  to  be 
made  defendant.  But  in  actions  to  recover  for  torts,  others 
than  the  person  who  did  the  wrongful  act  may  be  liable,  and 
may  be  made  defendants.  A  master  may  be  liable  for  the 
tortious  act  of  his  servant ;  the  keeper  of  animals  may  be  lia- 
ble for  certain  of  their  acts ;  and  one  may  be  liable  for  the 
tortious  act  of  another,  by  his  ratification  thereof.  With  a 
few  exceptions,  infants  are  not  liable  on  their  contracts  ;  but 
with  a  few  exceptions  they  are  liable  for  their  torts.  Exec- 
utors are  liable  on  the  contracts  of  their  testators ;  but  they 
are,  in  general,  not  liable  for  their  torts.  One  who  ought  to 
be  a  party  plaintiff,  but  who  refuses  to  join  in  bringing  the 
action,  may  be  made  a  defendant ;  and  one  may  be  made  a 
defendant  for  the  purpose  of  obtaining  affirmative  relief 
against  him,  or  siinply  to  cut  off  some  pretended  right  which 
he  asserts;  and  besides  the  original  parties  to  an  action, 
others  may  be  brought  in  while  it  is  pending. 

"The  general  rule  as  to  parties  in  chancery  is,  that  all 
ought  to  be  made  parties  who  are  interested  in  the  contro- 
versy, in  order  that  there  may  be  an  end  of  litigation.  But 
there  are  qualifications  to  this  rule  arising  out  of  public 
policy  and  the  necessities  of  particular  cases.  The  true  dis- 
tinction appears  to  be  as  follows :  first,  where  a  party  will  be 
directly  affected  by  a  decree,  he  is  an  indispensable  party, 
unless  the  parties  are  too  numerous  to  be  brought  before  the 
court,  when  the  case  is  subject  to  a  special  rule ;  second, 
where  a  person  is  interested  in  the  controversy,  but  will  not 
be  directly  affected  by  the  decree  made  in  his  absence  he  is 
not  an  indispensable  partj^  but  he  should  be  made  a  party  if 
possible,  and  the  court  will  not  proceed  to  a  decree  without 
him  if  he  can  be  reached ;  third,  where  he  is  not  interested 
in  the  controversy  between  the  immediate  litigants,  but  has 
an  interest  in  the  subject-matter  which  may  be  conveniently 
settled  by  the  suit,  and  thereby  prevent  further  litigation,  he 
may  be  a  party  or  not,  at  the  option  of  the  complainant."  ^ 

» Per  Bradley,  J.,  in  Williams    v.  Bankhead,  19  Wall.   563.    C/. 

Hughes  Tech.  of  Law,  234. 


483  PARTIES  TO  AN  ACTION.  §  454 

The  codes  of  procedure  have,  in  the  main,  adopted  the  equity 
theory  as  to  parties,  with  a  view  to  avoid  circuity  of  actions 
and  multiplicity  of  suits. 

454.  Parties  Defendant  in  Particular  Cases. — In  an 
action  for  the  specific  performance  of  a  contract  for  tlie  con- 
veyance of  land,  there  are  ordinarily  two  things  to  be  affected 
"by  the  decree — the  purchase-money,  and  the  title  to  the  land ; 
and  all  persons  having  a  legal  interest  in  either  of  these 
should  be  parties  to  the  action.  If  no  third  person  has,  or 
claims  to  have,  an  interest  in  the  property,  and  if  the  parties 
to  the  contract  are  living,  they  are  the  only  persons  to  be 
made  parties  to  the  action.  If  either  of  the  parties  to  the 
contract  be  dead,  the  heir  or  devisee  succeeds  to  his  interest 
in  the  land,  and  the  personal  representative  becomes  en- 
titled to  the  purchase-money  if  unpaid.  If  such  action  be 
brought  by  the  personal  representative  of  a  deceased 
vendor,  his  heirs  or  devisees,  if  they  refuse  to  join  as  plaint- 
iffs, should  be  made  defendants.^  And  in  such  case,  if  the 
vendee  be  dead,  the  action  should  be  against  both  his  heirs 
or  devisees  and  his  personal  representative .^  On  the  other 
hand,  if  the  action  be  against  the  vendor,  and  the  vendee  be 
dead,  the  heirs  or  devisees  of  the  latter,  having  succeeded  to 
his  equitable  rights,  are  the  proper  parties  plaintiff ;  ^  and  if 
the  vendor  be  dead,  his  heirs  or  devisees,  having  succeeded 
to  the  legal  title,  should  be  defendants.* 

In  a  suit  to  foreclose  a  mortgagor's  equity  of  redemption, 
whether  by  strict  foreclosure  or  by  judicial  sale,  the  only 
necessary  parties  defendant  are  those  interested  in  the  equity 
of  redemption — the  mortgagor,  his  heir,  devisee,  grantee,  or 
assignee.  Other  mortgagees  and  lien-holders  are  proper,  but 
not  necessary,  parties.  Any  mortgagee,  be  his  lien  senior, 
junior,  or  intermediate,  may  foreclose  without  making  other 
lien-holders  parties.     In  such  case,  the  rights  of  those  not 

1  Sto.  Eq.  PL  160,  177  ;  Mitchell  <  Sto.  Eq.  PI.  177  ;  Morgan  v. 
V.  Shell,  49  Miss.  118  ;  Roberts  v.  Morgan,  2  Wheat.  290  ;  Judd  v. 
Marchant,  1  Hare,  547.  Mosely,   30    Iowa,   423  ;  Moore  v. 

2  Sto.  Eq.  PI.  160  ;  Townsend  v.  Murrah,  40  Ala.  573  ;  Potter  v. 
Campemowne,  9  Price,  130.  Ellice,  48  N.  Y.  321. 

8  Buck  V.  Buck,  11  Paige,  170. 


§455  APPLICATION  OF  PRINCIPLES.  434 

made  parties  would  not  be  affected ;  and  a  purchaser  at  judi- 
cial sale  would  take  the  land  subject  to  their  rights.^  But 
the  proper  practice  is,  to  make  all  other  lien-holders  parties 
defendant,  in  order  that  the  sale  may  be  of  the  whole  title, 
free  from  incumbrance.^  A  mortgagor  who  has  conveyed 
away  his  equity  of  redemption  has  no  interest  in  a  suit  to 
foreclose,  and  is  not  a  necessary  party ,^  unless  he  is  also  the 
debtor,  and  the  plaintiff  seeks  judgment  against  him  in  the 
same  action.*  The  assignor  of  a  claim  for  work  done  or 
money  paid  out  is  not  a  necessary  party  to  an  action  thereon 
by  the  assignee.^ 

III.   OF   THE   JOINDER   OF   PARTIES. 

455.  The  Common-law  Rules. — Under  the  common  law, 
if  a  right  of  action  is  in  two  or  more  persons  jointly,  they 
should  join  as  plaintiffs  in  an  action  thereon.  This  is  so  be- 
cause, (1)  one  person  ought  not  to  sue  alone  for  the  whole  of 
that  whereof  he  is  entitled  to  only  a  moiety,  and  (2)  one  who 
is  liable  ought  not  to  be  subjected  more  than  once  for  one 
and  the  same  entire  cause.^  And  where  a  primary  right  has 
been  violated  by  the  joint  act  or  default  of  two  or  more,  if  the 
remedy  be  by  action  ex  contractu,  the  wrong-doei'S  should  all 
be  joined  as  defendants ;  if  the  action  be  in  form  ex  delicto, 
the  wrong-doers  may  or  may  not  be  joined  as  defendants,  at 
the  option  of  the  plaintiff.  The  reason  for  this  distinction  is, 
that  in  contracts,  if  the  obligation  be  joint,  the  liability  can 
not  be  otherwise  than  joint,  for  a  contract  with  two  or  more 
jointly  is  not  a  contract  with  each  or  with  any  of  them  sev- 
erally ; ''  but  where  wrong-doers  join  in  a  tortious  act,  the  act 

1  Sto.  Eq.  PL  193  ;  Anson  v.  An-  Semple  v.  Lee,  13  Iowa,  304  ;  Dela- 
son,  20  Iowa,  55  ;  Newcomb  v.  plaine  v.  Lewis,  19  Wis.  476. 
Dewey,  27  Iowa,  381  ;  Childs  v.  *  In  some  jurisdictions,  the 
Childs,  10  O.  S.  339  ;  Stewart  v.  joinder  of  the  debtor  in  such  case, 
Johnson,  30  O.  S.  24  ;  HoUiger  and  for  such  purpose,  is  authorized 
V.  Bates,  43  O.  S.  437.  by  statute. 

2  4  Kent  Com.  184-5.  C/.  Wright  «  Gunderson  v.  Thomas,  87  Wis. 
V.  Bundy,  11  Ind.  398 ;  Jacobie  v.  406. 

Mickle,  144  N.  Y.  237.  ^  Gould  PI.  iv.  56. 

«  Jones  V.  Lapham,  15  Kan.  540  ;        ^  Steph.  PI.  36. 
.Tohnson  v.  MoneU,  13  Iowa.  300 : 


485  PARTIES  TO  AN  ACTION.  §456 

f> 
of  each  is,  in  law,  the  act  of  all,  and  the  acts  of  all  are  the 
acts  of  each.i     Parties  plaintiff  have  not  such  choice  as  to 
joinder  or  severance,  because  a  right,  unlike  a  liability,  can 
not  be  joint  and  several.^ 

Upon  the  death  of  one  of  joint  obligees,  the  action  must  be 
by  the  survivors ;  and  if  all  die,  the  action  must  be  by  the 
personal  representative  of  the  last  survivor.^  If  one  of  joint 
obligors  die,  the  liability  passes  to  the  survivors,  and  on  the 
death  of  all,  it  passes  to  the  representatives  of  the  last  sur- 
vivor.* The  remedy  at  common  law  for  non-joinder  and  for 
misjoinder  is  by  demurrer,  by  plea  in  abatement,  by  nonsuit, 
by  arrest  of  judgment,  or  by  writ  of  error,  according  to  the 
circumstances  of  the  case.^ 

456.  Joinder  of  Parties  under  the  Reformed  Proce- 
dure.— The  new  procedure  has  not  annulled,  but  has  mate- 
rially modified,  the  rules  of  the  common  law  as  to  the  joinder 
of  parties.  Those  rules  were  mainly  drawn  from  the  sub- 
stantive law  creating  rights  and  obligations,  and  fixing  their 
character  as  joint,  or  as  several,  or  as  joint  and  several.  The 
like  rules  of  the  modern  procedure  are  drawn  from  the  same 
source  ;  ^  and  the  modifications  that  have  been  made  result 
mainly  from  the  union  of  legal  and  equitable  rights  and 
defenses  in  one  action,  and  from  the  consequent  adoption  of 
some  of  the  broader  rules  of  the  equity  procedure. 

The  codes  generally  provide,  that  all  persons  having  an 


1  Gould  PI.  iv.  66.     Torts  are  in  Keightley  v.  Watson,  3  Exch.  721, 

their  nature  several,  and  the  join-  723,  726. 

der  of  tort-feasors  is  allowed  be-  ^1  Chit.  PI.  19,  67;  Dicey  on  Par- 
cause  the  law  makes  each  liable  for  ties,  149  ;  Callison  v.  Little,  2  Por- 
the  acts  of  all,  done  in  furtherance  ter,  89. 

of  the  common  design.     6  Wait's  *  Dicey  on  Parties,  255  ;  1  Chit. 

Ac.  &  Def.  110  ;  2  Add.  on  Torts,  PI.  50. 

1321 ;  Ayer  v.  Ashmead,  31  Conn.  sgteph.  PI.  4&-51  ;  1  Chit.  PI.  13, 

447.  66,  86,  452.     Mr.  Andrews,  in  his 

''Slingsby's  Case,  5  Rep.  19;  Ec-  edition  of  Stephen    on  Pleading, 

cleston  V.  Clipsham,  1  Wm.  Saund.  has  added  a  chapter  on  "The  Join- 

153  ;  Petrie  v.  Bury,  3  B.  &  C.  353  ;  der  of  Parties,"  which  is  a  vevy 

Scott  V.  Godwin,  1  B.  &  P.  67,  71  ;  full  and  clear    treatment    of  the 

Foley  V.  Addenbroke,  4  Q.  B.  197  ;  subject.     See  pages  26-51. 

6  Cf.  Steph.  PI.  35. 


§  457  APPLICATION  OF  PRINCIPLES.  486 

interest  in  the  subject  of  the  action,  and  in  obtaining  the 
relief  demanded,  may,  with  certain  specified  exceptions,  be 
joined  as  plaintiffs ;  that  those  who  are  united  in  interest 
must  be  joined,  as  plaintiffs  or  as  defendants ;  and  that  any 
one  who  has,  or  claims,  an  interest  in  the  controversy  adverse 
to  the  plaintiff,  or  who  is  a  requisite  party  to  a  complete 
determination  or  settlement  of  the  question  involved  there- 
in, may  be  made  a  defendant. 

It  will  be  seen  from  these  provisions  that  persons  united 
in  interest  must  be  joined,  while  those  having  an  interest  in 
the  subject  of  the  action,  and  in  obtaining  the  relief 
demanded,  mai/  be  joined.  Persons  united  in  interest  ai-e 
such  as  have  a  joint  interest ;  and  these  must  be  joined, 
because  they  are  necessary  parties.  But  persons  not  jointly 
interested  may  have  a  common  interest  in  the  subject  of  the 
action,  and  in  the  relief  sought ;  and  these,  though  not 
necessary  parties,  may  be  joined  as  plaintiffs.  But  they  must, 
to  be  joinable,  be  interested  both  in  the  subject  of  the  action, 
and  in  the  relief  demanded ;  and  where  there  is  not  such 
community  of  interest,  there  can  not  be  joinder.  While  per- 
sons, to  join  as  plaintiffs,  must  have  a  joint  interest,  or  a 
common  interest,  all  that  is  requisite  to  the  joinder  of  a 
person  as  defendant,  is,  that  he  have  or  claim  an  interest  in 
the  controversy,  or  that  he  be  a  requisite  party  to  a  complete 
determination  of  the  matters  involved. 

It  is  generally  provided  in  the  codes,  that  one  who  should 
be  joined  as  a  plaintiff,  but  who  will  not  consent  to  such 
joinder,  may  be  made  a  defendant,  and  the  reason  therefor 
stated  in  the  complaint.  This  rule  is  adopted  from  the 
practice  in  equity.  The  rule  at  common  law  was,  that  a 
necessar}'-  plaintiff  could  be  joined  as  plaintiff,  against  his 
protest.^ 

457.  Joinder  of  Parties — Illustrative  Cases. — Where 
there  were  three  obligees  in  an  injunction  bond,  and  there 
was  a  breach  of  the  bond  that  interfered  with  separate  and 
distinct  rights  of  the  obligees,  it  was  held  they  miglit  prop- 
erly join  in  an  action  on  the  bond.^     The  action  was  not  for 

1  Steph.  PI.  44-47.  2Looniig  y.  Brown,  16  Barb.  325. 


487  PARTIES  TO  AN  ACTION.  §457 

the  infringement  of  the  distinct  and  disconnected  rights  of 
the  plaintiffs,  but  for  the  breach  of  the  bond ;  and  in  this, 
and  in  the  relief  demanded,  they  had  a  community  of  interest. 
In  an  action  on  a  forthcoming  attachment  undertaking,  it 
was  held  that  subsequent  attaching  creditors,  tliough  not 
named  in  the  undertaking,  might  be  joined  as  plaintiffs, 
because  of  their  common  interest  in  the  proceeds  of  the 
goods  attached.^  The  several  owners  of  separate  tracts  of 
land  illegally  charged  with  an  assessment  may  properly  join 
in  an  action  to  restrain  the  collection  of  the  assessment.^ 
Such  parties  own  separate  properties  to  be  affected  by  the 
assessment ;  but  they  have  a  common  interest  in  the  subject 
of  the  action,  and  in  the  relief  demanded.  The  cases  are 
numerous  in  which  a  joinder  of  plaintiffs  has  been  allowed, 
on  the  ground  of  community  of  interest  in  the  thing  com- 
plained of,  and  in  the  relief  sought.^  But  it  is  not  enough 
that  persons  are  all  interested  in  the  legal  question  involved  ;  * 
they  must  have  a  common  interest  in  the  thing  complained 
of,  and  in  the  remedy  sought. 

Where  two  railway  companies  use  the  same  track,  they 
may  be  joined  as  defendants  at  the  suit  of  a  passenger  injured 
in  a  collision  caused  by  the  negligence  of  both  companies.^ 
An  assignee  for  the  benefit  of  creditors  may,  in  one  action, 
enjoin  several  execution  creditors  from  selling  property 
assigned  to  him,  and  levied  on  by  them.^  There  can  not  be 
joint  liability  for  slander,'^  for  defamatory  words  can  not  be 
jointly  uttered  ;  aliter  as  to  libel. ^ 

It  has  been  held,  under  the  new  procedure,  that  one  firm 

iRutledge   v,    Corbin,    10  O.    S.  516;  Barnes  v.  Beloit,  19  Wis.  93, 

478.  94.     Cf.    W.    &  K.    Bridge  Co.  v. 

2  Glen  V.  Waddell,  23  O.  S.  605  ;  Wyandotte,  10  Kan.  326. 

Upington  v.  Oviatt,  24  O.  S.  232.  ^  Colegrove  v.  Ry.  Co.,  20  N.  Y. 

8 Tate  V.  O.  &  M.  Ry.  Co.,  10  Ind.  492. 

174  ;  Foot  V.  Bronson,  4  Lans.  47,  ^  OUphant  v.  Mansfield,  36  Ark. 

52  ;  Pettibone  V.  Hamilton,  40  Wis.  191.    Cf.  Hillman    v.    Newington, 

402 ;  Lutes  v.  Briggs,  5  Hun,  67.  57  Cal.  56. 

Contra,  Schultz  v.  Winter.  7  Nev.  ^  Webb  v.  Cecil,  9  B.  Mon.  198, 

130  ;  Fleming  v.  Mershon,  36  Iowa,  *  Thomas  v.  Ramsey,  6  Johns.  26, 

413.  32. 

*Peck  V.  School  Dist.,   21  Wis. 


§458  APPLICATION  OF  PRINCIPLES.  488 

may  sue  another  firm,  in  au  action  for  legal  relief,  although 
the  two  firms  have  a  common  member ;  and  that  it  is  not 
necessary  to  resort  to  the  equitable  relief  of  an  accounting.^ 

458.  One  Person  may  Sue  or  Defend  for  all  Inter- 
ested.— The  codes  provide  that  "  when  the  question  is  one 
of  a  common  or  general  interest  of  many  persons,  or  when 
the  parties  are  very  numerous,  and  it  is  impracticable  to 
bring  them  all  before  the  court,  one  or  more  may  sue  or 
defend  for  the  benefit  of  all."  This  iTile  is  adopted  from 
the  equity  practice,  and  is  founded  on  convenience.  Of 
course,  one  person  can  not,  under  favor  of  this  rule,  repre- 
sent others,  unless  he  and  they  could  properly  be  joined  as 
plaintiffs  or  defendants,  as  the  case  may  be ;  ^  and  the  requi- 
site facts  to  show  both  the  right  of  joinder  and  the  right  of 
representation  should  be  averred.^ 

This  provision,  which  applies  as  well  to  legal  ac  to  equitable 
actions,*  embraces  two  classes  of  cases ;  (1)  where  many  per- 
sons have  a  common  interest,  and  (2)  where  the  parties  r.re 
very  numerous.  To  bring  a  case  within  the  former  class, 
the  persons  interested  need  not  be  so  numerous  as  to  make 
the  inconvenience  of  joinder  a  reason  for  allowing  part  to 
represent  all ;  but  to  bring  a  case  within  the  latter  class,  the 
pleading  must  show  that  the  parties  are  so  numerous  as  to 
render  it  impracticable  to  bring  them  all  in ;  ^  it  has  been 
held  in  one  case  that  twenty  was  not  a  sufficient  number ;  ^ 
in  another,  that  thirty-five  was  not ;  '^  and  in  another,  that 
forty  was  insufficient.^  But  where  it  was  alleged  that  the 
parties  interested  were  "more  than  forty  in  number,"^  or 
that  they  were  "about  one  thousand"  in  number,^*^  it  was 
held  sufficient. 

iCole  V.  Reynolds,  18  N.  Y.  74.        ^Bardstown  Ry,  Co.  v.  Metcalf, 

Cf.  1  Pom.  Eq.  Jur.  189.  4  Met.  (Ky.)  199,  204. 

2  Reid  V.  The  Evergreens,  21  How.        ^  Harrison  v.  Stewardson,  2  Hare, 

Pr.  319,  321  ;  Adair  v.  New  River  530. 

Co.,  11  Vesey,  444;  Story's  Eq.  t  Kirk  v.  Young,  2  Abb.  Pr.  453. 
PL  123.  *  Brainerd  v.  Bertram,  5  Abb.  N. 

3Bardstown,  etc.,  Ry.  Co.  v.  Met-  C.  102. 
calf.  4  Met.  (Ky.)  199,  204.  »  Taylor  v.  Salmon,  4  M.  &  C.  (18 

*  Piatt  V.  Colvin,  50  O.  S.  703.  Eng.  Ch.)  134. 

w  Piatt  V.  Colvin,  50  O.  S.  703. 


489  PARTIES  TO  AN  ACTION.  §  459 

The  provision  under  consideration  is  applicable  in  actions 
by  heirs,  to  set  aside  a  deed  or  will  of  their  ancestor ;  ^  to 
actions  by  distributees  or  legatees,  for  an  accounting ;  ^  to 
actions  by  voluntary  unincorporated  associations  ;  ^  to  actions 
by  several  lot-owners,  to  enjoin  the  collection  of  an  illegal 
assessment ;  *  and  in  actions  by  tax-payers,^  by  pew-holders,^ 
by  policy-holders,^  and  by  creditors  to  set  aside  fraudulent 
conveyances.^ 

Persons  thus  represented  are  not  thereby  made  parties  to 
the  action,  though  they  are  "  in  a  sense  deemed  to  be  before 
the  court."  ^  If  they  come  in  and  share  the  expenses  or  the 
fruits  of  the  action,  or  if,  after  reasonable  notice,  they  fail 
to  come  in,  they  will  be  bound  by  the  judgment  rendered.^^ 

459.  Change  of  Parties  Ponding  Suit. — The  abatement 
of  actions  by  the  death  or  disability  of  a  party,  is  regulated 
by  statute  in  the  different  states,  and  no  general  rule  can  be 
drawn  from  them.  Where  it  is  found  that  a  complete  deter- 
mination of  the  controversy  can  not  be  had  without  the 
presence  of  other  parties,  the  codes  generally  provide  that 
the  court  may  cause  them  to  be  brought  in ;  and  this  may  be 
done  at  any  stage  of  the  action,  even  after  appeal.^^  Where 
a  suit  is  properly  brought  in  the  name  of  a  public  officer,  the 
expiration  of  his  term  of  office  will  neither  abate  nor  discon- 
tinue the  action,  because  the  proceeding  is  in  fact  at  the  suit 
of  the  public,  represented  by  the  officer.^ 

The  right  of  third  persons  to  intervene  is  limited,  generally, 

iHendrix  V.  Money,  1  Bush,  306.  '^Luling    v.   Ins.   Co.,  45    Barb. 

^McKenzie  v.    L'Amoureux,    11  510. 

Barb.  516,  where  the  number  repre-  *  1  Dan.  Ch.  PL  235. 

sented  by  the  plaintiff  was  three  ;  ^  Sto.  Eq.  PI.  99  ;  Adair  v.  New 

Towner  v.   Tooley,  38   Barb.  598;  River  Co.,  11  Vesey,  444. 

Hallett  V.  Hallett,  2  Paige,  15,  21.  i^Sto.  Eq.  PI.  99,  106 ;  Barker  v. 

3  Sto.    Eq.    PL    97,   107   et  seq.  ;  Walters,  8  Beav.  92  ;  Per  DixON, 

Piatt  V.  Colvin,  50  O.  S.  703.  C.  J.,  in  Stevens  v.  Brooks,  22  Wis. 

<Upington  v.    Oviatt,   24  O.    S.  695,  703-4  ;  Per  Walworth,  Ch. ,  in 

232.  Hallett  v.  Hallett,  2  Paige,  19. 

5 Lynch  v.  Eastern,  etc.,  Co.,  57  "Shaver  v.  Brainard,  29  Barb.  25. 

Wis.  430.  12  Bridge  Co.  v.  Mayer,  31  O.  S. 

6  MUligan  v.  Mitchell,  3  Myl.  &  317,  323. 
Cr.  72,  84. 


§  459  APPLICATION  OF  PRINCIPLES.  490 

to  actions  for  the  recovery  of  real  or  personal  property.  In 
such  actions,  a  person  claiming  an  interest  in  the  property 
may,  on  his  application,  have  leave  to  become  a  party.  For 
example,  in  a  suit  for  specific  performance  of  a  contract  to 
convey  land,  a  third  person,  alleging  paramount  title  in  him- 
self, may  be  allowed  to  intervene.^  But  in  a  suit  to  parti- 
tion land  among  the  heirs  and  devisees  of  a  deceased  owner, 
a  judgment  creditor  of  the  decedent  ^  lias  not  such  interest 
as  to  warrant  his  intervention. 

The  statutory  remedy  of  interpleader  sometimes  brings  a 
new  party  into  a  pending  action.  Interpleader  in  equity  is 
by  original  bill  for  relief.^  It  is  the  proper  remedy  where 
two  or  more  persons  each  claim  the  same  debt  or  duty  from 
the  plaintiff,  and  he  seeks  the  judgment  of  the  court  as  to 
which  of  the  claimants  is  entitled.  In  such  case,  the  plaintiff 
must  stand  as  a  mere  stakeholder,  and  must  be  indifferent  as 
to  the  rights  or  the  success  of  the  several  claimants.  He 
must,  in  his  bill,  admit  his  liability  to  one  or  another  of  the 
defendants,  must  assert  his  ignorance  as  to  which  has  the 
legal  or  equitable  right,  must  offer  to  bring  the  money  or 
thing  into  court,  or  to  obey  the  order  of  the  court  in  reference 
thereto,  and  must  make  affidavit  that  there  is  no  collusion 
between  him  and  any  other  party .^  The  prayer  of  the  bill 
is  in  substance,  that  the  defendants  be  required  to  interplead, 
and  that  the  court  may  determine  to  which  of  them  the  plaint- 
iff shall  render  that  which  he  admits  he  owes.^ 

By  statutes  in  nearly  all  the  states,  this  right  of  inter- 
pleader is  given  to  a  defendant  in  certain  actions,  both  legal 
and  equitable.  Under  favor  of  such  statute,  the  defendant 
may,  before  answer,  represent,  by  affidavit,  that  a  third  party, 
without  collusion  with  him,  maliGS  claim  to  the  subject  of 
the  action,  and  that  the  defcnda,nt  i:-  ready  to  pay  or  do,  as 
the  court  may  direct.     Thereupon,  the  ^ourt  may  order  such 

^  Carter  v.  Mills,  30  Mo.  432.     Cf.  vit  r-  a  mc^ans  to  prevent  abuse  of 

Baker  v.  Riley,  16  Ind.  479.  its  jurisdiction. 

2  Waring  V.  Waring,  3  Abb.  Pr.  6  3    Pom.    Eq.    Jur.     1320-1329; 

246.  Bisph.  Prin.  Eq.  419-422  ;  Barton's 

•Ante,  151,  152.  Suit  in  Eq.  70,  71.     For  forms  of 

<  The  court  requires  such  affida-  bill,  see  Lube's  Eq.  PL  399-403. 


401  PARTIES  TO  AN  ACTION.  g  460 

third  party  to  appear  and  assert  or  relinquish  his  claim ;  and 
the  defendant,  upon  complying  with  the  order  of  the  court 
touching  the  subject  of  the  action,  is  discharged  from  further 
liability  to  either  claimant.  It  will  readily  be  seen  that  this 
summary  remedy  by  statute  is  merely  cumulative,  and  does 
not  at  all  impair  the  equitable  remedy;  and  such  is  the 
almost  uniform  holding.^ 

460.  Modes  of  Objecting  as  to  Parties. — All  the  codes 
of  procedure  make  a  defect  of  parties,  whether  plaintiff  or 
defendant,  a  ground  of  demurrer  by  the  defendant,  if  such 
defect  appear  from  the  complaint ;  otherwise,  the  non-joinder 
is  to  be  taken  advantage  of  b}"  dilatory  answer  showing  the 
defect.^  Defect  of  parties  means  too  few,  not  too  many  ; 
and  it  relates  to  necessary  parties,  and  not  to  proper  parties. 

An  excess  of  parties  may,  in  some  states,  be  taken  advan- 
tage of  by  demurrer.  In  some  states  misjoinder  of  parties 
plaintiff  is  ground  for  demurrer,  while  in  some  a  misjoinder 
of  parties  plaintiff  or  defendant  may  be  taken  advantage  of 
by  demurrer.3  Where  there  is  a  misjoinder  of  defendants, 
apparent  from  the  complaint,  the  supernumerary  parties  may 
demur  on  the  ground  that,  as  to  them,  the  facts  stated  do  not 
constitute  a  cause  of  action.* 

1  Interpleader  in  equity  is  not  to  event  he  will  be  freed  from  their 
avoid  the  risk  of  two  recoveries,  opposing  demands, 
but  to  avoid  the  vexation  of  two  or  2  Ante,  237,  298.     The  latter  sec- 
more  suits  in  respect  of  one  liabil-  tion  relates  to   demurrer  for  non- 
ity.    It  is  of  the  essence  of  the  pro-  joinder,  and  cities  the  authorities, 
ceeding,  that  the  plaintiff  is  liable  ^  Ante,  301,  and  cases  cited, 
to  only  one  of  the  several  claimants.  *  Lewis  v.  Williams,  3  Minn.  151 ; 
He  can  neither  ask  nor  have  any  Nichols  v.  Drew,  94  N.  Y.  22  ;  Pal- 
specific  relief  ;  and  he  can  have  no  mer  v.  Davis,  28  N.  Y.  242  ;  Rum- 
concern  with  the  result  of  the  con-  sey  v.  Lake,  55  How.  Pr.  340. 
tention  which  he  invites,  for  in  any 


CHAPTER  XXVII. 

THE  JURISDICTION  OF  THE  COURT. 

461.  Jurisdiction  Defined. — Since  a  remedial  right  may 
not  be  enforced  everywhere,  and  because  the  judgment  of  a 
court  without  jurisdiction  is  a  nullity,  the  selection  of  the 
proper  forum  in  which  to  institute  an  action  is  a  preliminary 
consideration  of  the  first  importance. 

Jurisdiction  is  the  power  of  a  court  or  tribunal  to  entertain 
an  action,  to  hear  and  determine  controversies  therein,  and 
to  enforce  its  decision.  Jurisdiction  is  original  or  appellate, 
general  or  limited,  exclusive  or  concurrent,  and  terfitorial.  It 
is  original^  when  the  court  may  entertain  the  action  in  the 
first  instance;  it  is  appellate^  when  the  action  may  be  enter- 
tained only  on  appeal  from  the  judgment  of  another  court. 
General  jurisdiction  extends  over  a  great  variety  of  causes, 
while  limited  jurisdiction  extends  only  to  certain  specified 
causes.  Jurisdiction  is  exclusive.,  when  the  action  may  be 
brought  in  only  one  particular  court ;  it  is  concurrent.,  when 
the  action  may  be  entertained  by  one  court,  or  by  another,  at 
the  option  of  the  plaintiff.  Territorial  jurisdiction  is  the 
geographical  limit  within  which  a  court  may  act. 

Three  things  are  essential  to  the  exercise  of  jurisdiction  in 
any  case :  First,  the  court  must  have  coprnizance  of  the  sub- 
ject-matter of  the  action  ;  secondly,  the  proper  parties  must 
be  before  the  court ;  and  thirdly,  the  action  of  the  court  must 
be  invoked  by  proper  pleadings.^ 

462.  Cognizance  of  the  Subject-matter. — The  subject- 
matter  of  an  action  is  the  right  asserted  by  the  plaintiff,  and 

1  Steph  PI.  136,  note  3  ;  Munday  308.     For  the  distinction  between 

V.  Vail,  5  Vroom  (N.  J.),  418.     Cf.  courts  of  limited  jurisdiction  and 

Reynolds  v.   Stockton,    140  U.  S.  those  of  general  jurisdiction,  see 

254 ;  Cooper  v.  Reynolds,  10  Wall,  ante,  374,  375. 
492 


493  JURISDICTION  OF  THE  COURT.  §402 

upon  wliich  he  demands  the  judgment  of  the  court.  For 
example,  the  right,  in  ejectment,  to  obtain  possession  of  the 
land ;  in  assumpsit,  to  recover  on  a  promise ;  in  equity,  to 
have  foreclosure,  or  specific  performance.^  It  is  this  that 
characterizes  the  action,  and  this  must  fall  within  the  estab- 
lished cognizance  of  the  court ;  that  is,  the  court  must,  by 
the  constitution  and  the  laws,  have  cognizance  of  the  class  of 
cases  to  which  the  one  to  be  entertained  belongs. 

Jurisdiction  of  the  subject-matter  is  conferred  only  by  the 
constitution  and  the  laws.^  It  can  not  be  conferred  by  the 
consent  of  the  parties  ;^  nor  can  it  be  abridged  by  an  agree- 
ment of  parties.  The  right  to  administer  justice  can  neither 
be  controlled  nor  curtailed  by  an  arrangement  between  the 
parties.^  And  the  legislature  can  not  subsequently  validate 
a  judicial  act  that  is  void  for  want  of  jurisdiction  of  the  sub- 
ject-matter.5 

Where  jurisdiction  depends  upon  the  amount  involved, 
the  criterion  is  the  amount  stated  in  the  body  of  the  com- 
plaint, and  not  that  stated  in  the  prayer  for  relief,  if  these 
differ.^  And  where  jurisdiction  depends  upon  the  existence 
of  some  extrinsic  fact,  such  fact  must  be  alleged  in  the  com- 
plaint.''' 

^  Jacobson  V.  Miller,  41  Mich.  93  ;        *  "Watts  v.   Boom  Co.,  47  Mich. 

Per  Miller,  J.,  in  Cooper  v.  Rey-  540. 

nolds,  10  Wall.  308,  316.     For  the        ^  Maxwell     v.     Goetschins,      11 

distinction  between  the  subject  of  Vroom,  383. 

an  action,   and  the  subject-matter        ^  Lee  v.  Watson,    1   Wall.    337  ; 

thei-eof,  see  ante,  181,  note.  Shacker  v.  Ins.  Co.,  93  U.  S.  241. 

2  "  By  jurisdiction  over  the  sub-  '^  Ante,  181.  The  Roman  lawdis- 
ject-matter  is  meant  the  nature  of  tinguished  jurisdiction  from  what 
the  cause  of  action  and  of  the  relief  it  termed  the  competency  of  a  trib- 
sought ;  and  this  is  conferred  by  unal ;  meaning  by  competency,  the 
the  sovereign  authoi-ity  which  or-  right  which  a  tribunal  has  to  exer- 
ganizes  the  court,  and  is  to  be  cise  in  a  particular  case,  the  juris- 
sought  for  in  the  general  nature  of  diction  belonging  to  it.  Incompe- 
its  powers,  or  in  authority  specially  tency  could  be  waived  by  the  con- 
conferred."  Miller,  J.,  in  Cooper  sent  of  the  parties,  but  want  of  ju- 
V.  Reynolds,  10  Wall.  308,  316,  risdiction  could  not  be  so  waived. 

'GiUiland  v.  Sellers,  2  O.  S.  223.  Mack.  Rom.  Law  (5th  Ed.),  337. 
Cf.     Mex.   Ry.   Co.    v.   Davidson, 
157  U.  S.  201. 


§  463  APPUCATION  OF  PRINCIPLES.  494, 

463.  The  Parties  Must  be  in  Court. — In  tlie  selection  of 
the  forum  in  which  to  bring  an  action,  regard  must  be  had» 
not  only  to  its  jurisdiction  of  the  subject-matter,  but  to  its 
right  and  power  to  acquire  jurisdiction  of  the  defendant ; 
the  maxim  being,  actor  sequitur  forum  rei — a  plaintiff  folio  ws 
the  court  of  the  defendant.  The  judgm-ent  of  a  court  pro- 
nounced against  one  without  hearing. him,  or  giving  him 
opportunity  to  be  heard,  is  not  a  judicial  determination  of 
his  rights,  and  does  not  concluide  him. 

Jurisdiction  of  the  defendant  may  be  acquired  (1)  by  his 
voluntary  appearance  and  submission  to  the  court,  or  (2)  by 
service  of  process  upon  him ;  and  a  voluntary  appearance 
may  be  (1)  a  general  appeai-ance,  which  is  a  waiver  of  pro- 
cess, and  confers  jurisdiction  of  the  person,  or  (2)  a  special 
or  qualified  appearance,  which  is  for  some  special  purpose 
only,  and  does  not  confer  jurisdiction  of  the  person .^  While 
consent  of  parties  can  not  confer  jurisdiction  of  the  subject- 
matter,  jurisdiction  of  the  parties  may  be  acquired  by  con- 
sent. The  doctrine  is,  that  consent  will  not  confer  jurisdic- 
tion where  the  court  could  not  legally  acquire  it  without 
consent ;  in  other  words,  parties  may  waive  their  rights,  and 
consent  to  what  is  legally  within  the  power  of  the  court,  but 
they  can  not  confer  power  upon  the  court.  An  appearance 
of  the  defendant  for  the  purpose  of  contesting  the  merits  of 
the  cause,  whether  by  motion  or  by  formal  pleading,  is  a 
waiver  of  all  objection  to  the  jurisdiction  of  the  court  over 
the  person  of  the  defendant,  whether  he  intended  such  waiver 
or  not.  Thus,  where  the  defendant,  after  the  filing  of  a 
complaint,  files  a  motion  to  strike  from  the  files  all  papers  in 
the  action,  for  irregularities  and  defects ;  ^  or  moves  to  have 
the  cause  dismissed  on  the  ground  that  the  court  has  not 
jurisdiction  of  the  subject-matter  of  the  action,  and  his  motion 
is  overruled,^  it  is  a  voluntary  appearance,  equivalent  to 
service  of  process.     But  if  a  defendant  appears  in  a  cause 

1  Steph.  PI.  104,  note  2.  'Elliott   v.  Lawhead,   43  O.  S. 

aMahoIm  v.  Marshall,  29  O.  S.  171.     Cf.     Handy  v.   Ins.  Co.,  37 

611.    Cf.  Sentenis  v.   Ladew,  140  O.  S.  366. 
N.  Y.  463. 


495  JURISDICTION  OF  THE  COURT.  g  464 

for  the  sole  purpose  of  objecting  to  the  jurisdiction  of  the 
court  over  his  person,  and  only  makes  such  objection,  he 
does  not  thereby  submit  himself  to  the  jurisdiction  of  the 
court.^ 

464.  Parties  Must  be  in  Court,  Continued. — The  right 
to  object  to  the  jurisdiction  of  the  person  of  the  defendant 
is  waived  by  his  voluntary  appearance  for  any  purpose  other 
than  to  object  to  the  jurisdiction  of  the  court  on  that  ground.^  , 
Even  the  filing  of  a  motion  objecting  to  the  jurisdiction  on 
the  ground  that  the  right  of  action  arose  in  another  state,  is 
a  submission  of  the  person  to  the  jurisdiction  of  the  court,^ 
But  objection  to  jurisdiction  of  the  subject,  or  of  the  subject- 
matter,  of  the  action  is  not  waived  by  the  voluntary  appear- 
ance of  the  defendant.* 

A  defendant  may  voluntarily  submit  himself  to  the  juris- 
diction of  the  court  even  after  judgment.  If  a  defendant 
file  a  motion,  to  vacate  the  judgment  for  want  of  jurisdiction 
of  his  person,  and  then  consent  to  a  dismissal  of  his  motion ;  * 
or  cause  an  undertaking  for  stay  of  execution  to  be  given  ;  * 
or  appear  in  court  and  give  notice  of  appeal ;  ^  he  gives  the 
court  jurisdiction  of  his  person.  When  a  defendant  invokes 
the  action  of  tlie  court,  without  questioning  its  jurisdiction, 
he  thereby  enters  an  appearance  and  submits  to  its  jurisdic- 
tion of  his  person.^  And  this  he  may  do  so  long  as  the 
case  is  pending — that  is,  during  the  time  within  which  any 
further  procedural  act  may  be  done  therein. 

Jurisdiction  of  the  defendant  in  invitum  can  be  acquired 
only  by  service  of  notice,  actual  or  constructive,  pursuant  to 
the  requirements  of  the  statute.     And  when  a  writ  is  returned 

1  Smith  V.  Hoover,  39  O.  S.  249  ;  8  Handy  v.  Ins.  Co.,  37  O.  S.  366 

Reed  v.  Chilson,  142  N.  Y.  152.  *  People  v.  Ry.  Co.,  42  N.  Y.  283  ; 

2Burdette  v.   Corgan,   26    Kan.  Gray  v.  Ryle,  18  Jones  &  S.  198; 

102;    Meixell    v,   Kirkpatrick,    29  Harriott  v.  Ry.  Co. ,  2  Hilt.  262. 

Kan.  679.     And  this  rule  applies  as  ^Marsden  v.  Soper,  11  O.  S.  503. 

well  to  a  corporation,  and  even  to  ^  Shafer  v.  Hockheimer,  36  O.  S. 

a  foreign  corporation,  as  to  an  indi-  215. 

vidual.     Pease  v.  Ry.  Co.,  10  Daly,  ^Fee  v.  Iron  Co.,  13  O.  S.  563. 

459  ;  McCormick  v.  Ry.  Co. ,  49  N.  *  Mason  v.  Alexander,  44   O.  S. 

Y.  303  ;  Handy  v.  Ins.  Co.,  37  O.  S.  318. 
366  ;  Harriett  v.  Ry.  Co.,  2  Hilt.  262. 


§465  APPLICATION  OF  PRINCIPLES.  49$ 

without  service,  alias  writs  may  be  issued,  until  the  defend- 
ant is  summoned. 

465.  Must  he  Proper  Pleadings. — It  is  not  sufficient  for 
the  rightful  exercise  of  jurisdiction,  tliat  the  court  have  cog- 
nizance of  the  subject-matter  and  have  the  proper  parties 
before  it.  In  addition  to  these  requisites,  the  action  of  the 
court  must  be  invoked  by  the  methods  established  by  law  for 
judicial  procedure.^ 

Before  jurisdiction  can  be  affirmed  to  exist,  it  must  appear, 
(1)  that  the  law  has  given  the  tribunal  capacity  to  entertain 
the  complaint;  (2)  that  such  complaint  has  actually  been 
conferred;  and  (3)  that  the  person  so  complained  of  has 
been  properly  brought  before  the  tribunal  to  answer  to  such 
complaint.  When  these  jurisdictional  requisites  appear,  the 
jurisdiction  has  attached,  and  the  cause  is  coram  judice. 
The  decision  of  every  question  thereafter  arising  is  but  the 
exercise  of  the  jurisdiction  thus  conferred;  and  whether  de- 
termined rightly  or  wrongly,  is  immaterial  to  the  validity  of 
the  final  judgment,  when  brought  collaterally  in  question.* 

As  a  court  may  not  exercise  its  powers  ex  mero  motu,  so  it 
may  not  exercise  them  except  as  invoked  and  authorized  by 
the  pleadings.^ 

i"To    bring    a    cause    before  a  judicial  proceedings  of  every  other 

court,  competent  to  adjudicate  it,  state,"  does  not  forbid  inquiry,  in 

it  is   not  only  necessary  that  the  the  courts  of  the  state  to  which  the 

parties  should  be  in  i?i  jus  vocatio,  judgment  is  presented,  as  to  the 

— cited  or  summoned  in  a  manner  jurisdiction  of   the   foreign   court 

required  by  the  law  of  procedure,  over  the  person   and  the  subject- 

— but  a  case  must  also  be  made,  or  matter  ;   Thompson  v.   Whitman^ 

stated,  affecting  the  party  against  18  Wall.  457  ;  nor  does  it  preclude 

whom  relief  is  asked."    Per  MiN-  inquiry  as   to  whether    the  judg- 

SHALL,  J.,  in  Spoors  v.  Coen,  44  O.  ment  so  rendered  was  so  far  respon- 

S.  497,  502.  sive  to  the  issues  tendered  by  the 

*  Sheldon  v.  Newton,  3  O.  S.  494.  pleadings  as  to  be  a  proper  exercise 

2  Steph.  PI.  28  ;  Spoors  v.  Coen,  of  jurisdiction  on  the  part  of  the 

44  O.  S.  497.     A  judgment  that  is  court  rendering   it.     Reynolds   v. 

not  responsive  to  the  issues  pre-  Stockton,     140    U.     S.     254.      Cf, 

sented  by  the  pleadings  is  rendered  Waterman    v.    Lawrence,    19  Cal. 

without  jurisdiction.     The  consti-  210;  Munday  v.  Vail,  34  N.  J.  L. 

tutional  provision,  that  "  fuU  faith  418.     It  has  been  held,  that  where 

and  credit  shall  be  given  in  each  parties,  on  appeal  from  a  justice  of 

state  to  the  public  acts,  records,  and  the  peace,  proceed ,  upon  the  tran- 


497  JURISDICTION  OF  THE  COURT.         §§466-467 

466.  Must  be  Proper  Pleadings,  Continued. — A  judg- 
ment rendered  on  a  case  not  stated  is  coram  nonj'udice,  tliough 
rendered  by  a  court  liaving  jurisdiction  of  the  subject-matter 
and  of  the  parties.  A  court  may  not,  simply  because  A.  and 
B.  are  parties  to  a  pending  suit,  decide  some  matter  in  which 
they  are  interested,  but  which  is  not  involved  in  the  pending 
litigation.  For  example,  a  mortgage  may  not  be  foreclosed 
upon  pleadings  in  replevin,  nor  title  quieted  in  an  action  for 
slander.  In  an  action  to  foreclose  a  mortgage,  the  complaint 
alleged  that  one  S.,  a  defendant,  had,  or  claimed,  some  inter- 
est in  the  property.  He  did  not  answer,  and  the  decree  pur- 
ported to  bar  him  of  all  right  in  the  premises.  In  fact,  S. 
held  a  senior  mortgage,  and  in  a  subsequent  action  to  fore- 
close his  mortgage,  it  was  held  that  the  former  decree  adjudi- 
cated nothing  as  to  him.  The  complaint  alleged  nothing 
against  the  validity  of  his  claim,  and  he  was  not  called  upon 
to  defend.  He  had  the  right,  so  far  as  advised  by  the  com- 
plaint, to  assume  that  the  action  would  proceed  upon  the 
theory  that  he  had  a  lien  paramount  to  that  of  the  plaintiff, 
and  that  his  rights  were  not  to  be  affected  by  the  proceedings  ; 
and  the  complaint  did  not,  by  any  proper  allegation,  invoke 
the  action  of  the  court  as  to  the  right  or  claim  of  S.^  There 
was  undoubted  jurisdiction  of  the  subject,  of  the  subject- 
matter,  and  of  the  person ;  but  the  pleadings  did  not  warrant 
the  decree  that  was  entered. 

467.  Must  be  Proper  Pleadings,  Continued.— A  com- 
plainant alleged  that  he  had  loaned  money  on  a  promise  of 
mortgage  security,  and  that  the  land  so  to  be  mortgaged  to  him 
had  been,  by  the  borrower,  fraudulently  conveyed  to  another 
in  trust  for  himself  and  wife  for  life,  with  remainder  to  his 
children.     The  prayer  of  the  complaint  was,  that  the  trust  be 

script  of  the  justice,  and  without  plied  by  the  transcript  of  the  mag- 
pleadings,  to  trial,  verdict,  and  istrate.  And  yet  the  decision  is 
judgment,  the  judgment  will  not  contrary  to  principle,  and  is  of 
be  reversed  on  error.  Hallam  v.  doubtful  authority. 
Jacks,  11  O.  S.  692.  In  such  case,  i  Strobe  v.  Downer.  13  Wis.  11  ; 
the  court  having  jurisdiction  by  Lewis  v.  Smith,  9  N.  Y.  502  ;  Spoors 
the  appeal,  the  want  of  pleadings  v.  Coen.  44  O.  S.  497  ;  Laughlin  v. 
waa  a  mere  irregiilarity ,  partly  sup-  Vogelsong,  5  O.  C.  C.  Rep.  407. 
32 


§467  APPLICATION  OF  PRINCIPLES.  493 

declared  void  with  respect  to  the  claim  of  complainant.  The 
decree  adjudged  the  conveyance  in  trust  to  be  invalid,  not  only 
so  far  as  to  let  in  the  claim  of  the  complaining  creditor,  but 
as  between  the  ti'ustee  and  the  beneficiaries  as  well.  The 
validity  of  this  decree  being  afterward  drawn  in  question 
collaterally,  it  was  held,  that  so  far  as  it  exceeded  the  prayer 
of  the  complaint  it  was  beyond  the  jurisdiction  of  the  court, 
and  was  invalid ;  that  the  complainant  had  no  standing  to  ask 
such  decree,  and  the  court  had  no  authority  to  make  it, 
because  not  moved  thereto  by  the  pleadings.^ 

Under  a  statute  providing  that  when,  in  an  action  on  a 
joint  obligation,  it  is  made  to  appear,  by  testimony,  that  one 
of  the  defendants  signed  the  obligation  as  surety  for  his  co- 
defendant,  this  fact  shall  be  certified  in  the  judgment,  and 
the  property  of  the  principal  debtor  shall  then  be  exhausted 
before  property  of  the  surety  may  be  taken  in  execution,  each 
of  two  joint  obligors  and  co-defendants  filed  a  paper  pur- 
porting to  be  an  answer,  and  alleging  that  he  was  surety  and 
the  other  principal.  The  court  found,  "  upon  the  issues  joined 
between  the  defendants,"  thatB.  was  surety,  and  C.  principal. 
In  a  subsequent  action  for  contribution,  it  was  held,  that  the 
former  finding  had  only  the  effect  prescribed  by  the  statute  , 
that  it  might  have  been  made  without  pleadings ;  that  the 
supposed  pleadings  were  not  authorized,  and  they  conferred 
upon  the  court  no  jurisdiction  other  than  that  conferred  by_ 
the  statute  without  pleadings  ;  that  the  supposed  issue  joined 
in  the  case  did  not  change  the  effect  of  the  finding  therein  ; 
and  that  in  the  action  for  contribution  the  relation  of  the 
parties  to  the  obligation  originally  sued  on  was  an  open 
question.^ 

This  jurisdictional  requisite  has  not  often  received  judicial 
consideration ;  but  it  rests  upon  the  soundest  principles  of 
logic  and  of  justice.  A  judgment  upon  something  outside 
of  the  issue  would  conclude  the  parties  upon  a  matter  con- 
cerning which  they  had  not  been  heard  ;  and  yet  it  is  upon 
the  ground  that  the  parties  have  been  heard,  or  have  had  an 

»Munday  v.  Vail,  5  Vroom,  418.        2  Gatch  v.  Simkins,  25  O.  S.  89. 


499  JURISDICTION  OF  THE  COURT.         §§468-469 

opportunity  to  be  heard,  that  the  law  gives  conclusive  effect 
to  matters  once  adjudicated. 

468.  Actions  Local  and  Transitory. — The  common-law 
distinction  between  local  and  transitory  actions  does  not 
generally  obtain  in  this  country  ;  yet  it  by  no  means  folio  us 
that  a  remedial  right  is  capable  of  being  enforced  everywhere* 
Some  actions  are  local,  because  of  the  nature  of  the  subject 
of  the  action.  An  action  for  the  recovery,  or  the  partition 
of  real  property  can  be  entertained  only  by  a  court  witliin' 
whose  territorial  jurisdiction  the  property  is  situate  ;  for  no 
other  court  can  deal  with  the  subject  of  the  action.  But 
personal  actions,  whether  they  arise  ex  delicto  or  ex  contractu^ 
are,  in  general,  transitory  in  their  nature,  because  they  aie 
founded  on  the  violation  of  rights  which,  in  legal  contempla- 
tion, have  no  locality.  Dehitum  et  contractus  sunt  nullius  loci. 

Some  actions — as  for  a  statutory  penalty,  on  an  official 
bond,  or  for  neglect  of  official  duty — are,  by  statute,  required 
to  be  brought  "  in  the  county  where  the  cause  of  action  or 
some  part  thereof  arose."  This  is  not  a  technical  use  of  the 
term  "  cause  of  action,"  ^  and  is  generallj'  held  to  mean  where 
the  cause  of  liability  arose.^  A  provision  that  an  action  against 
a  railway  company  may  be  brought  in  any  county  through  or 
into  which  its  road  passes,  relates  only  to  jurisdiction  of  the 
person,  and  does  not  render  the  action  local.  It  is  not  neces- 
sary that  the  complaint  in  such  case  allege  the  locus  of  the 
road ;  and  a  voluntary  appearance  in  an  action  brought  in 
another  county  gives  the  court  jurisdiction .^ 

469.  Want  of  Jurisdiction. — It  is  a  fatal  objection  to  the 
jurisdiction  of  any  court,  that  it  has  not  cognizance  of  the 
subject-matter  of  the  action  ;  that  is,  that  the  nature  of  tlie 
action  is  such  as  the  court  is,  under  no  circumstances,  com- 
petent to  entertain.  In  such  case,  a  plea  to  the  jurisdiction 
is  not  necessary.  The  cause  may  be  dismissed  on  motion,  or 
the  court  may,  without  plea,  motion,  or  demurrer,  dismiss  it 
sua  sponte ;  for  the  whole  proceedings  would  be  coram  non 
Judice,  and  void.* 

»C/.  ante,  30,  31.  SRy.  Co.  v.  Morey,  47  O.  S.  207. 

» Veeder  v.  Baker,  83  N.  Y.  156.  *  Gould   PI.    v.  25  ;  Wildman  v. 


§409  APPLICATION  OF  PRINCIPLES.  50O 

There  is  a  material  distinction,  however,  between  want  of 
jurisdiction,  and  error  in  the  exercise  of  jurisdiction.  In  the 
one  case,  the  whole  proceedings  are  coram  non  Judiee,  and 
void  ;  in  the  other  case,  the  judgment  can  not  be  impugned 
collaterally,  and  is  valid  until  reversed  in  a  proceeding  directly 
attacking  it.^  When  a  court  has  jurisdiction,  .it  is  invested 
with  power  to  determine  the  rights  of  the  parties,  and  no 
irregularity  or  error  in  the  exercise  of  such  power  can  pre- 
vent its  judgment  from  operating  upon  such  matters  as  fall 
within  the  legitimate  scope  of  its  adjudication  ;  but  when  a 
court  acts  without  having  jurisdiction,  its  exercise  of  authority 
is  wholly  usurped,  and  its  judgment  is  the  exercise  of  arbi- 
trary power,  under  the  forms,  but  without  the  sanction,  of  law. 

Jurisdiction  of  the  subject-matter  depends,  as  a  rule,  upon 
the  allegations,  and  not  upon  the  facts.  "When  a  plaintiff 
alleges  facts  showing  that  he  has  a  right  of  action,  and  the 
law  has  given  the  tribunal  the  power  to.  entertain  such  cause, 
it  should  proceed — having  first  obtained  jurisdiction  of  the 
defendant — to  determine  the  truth  or  falsity  of  the  complaint. 
It  is  not  the  truth  of  the  allegations  that  confers  jurisdiction 
in  the  first  instance,  for  the  court  must  have  jurisdiction, 
before  it  can  determine  their  truth,  or  take  any  advance 
step.  Jurisdiction  of  the  subject-matter  is,  therefore,  prop- 
erly determinable  at  the  commencetoent,  and  not  at  the  con- 
clusion, of  the  inquiry  ;  ^  and  the  test  is,  primarily,  whether 
the  court  has  power,  under  the .  allegations  of  the  complaint, 
to  enter  upon  an  inquiry  as  to  the  right  asserted.^ 

In  a  court  of  general  and  unlimited  jurisdiction,  it  is  not 
necessary  to  allege  facts  showing  its  jurisdiction.  But  in  a 
court  of  limited,  or  of  special,  jurisdiction,  its  jurisdiction 
must  be  shown  by  allegations;^ 


.4 


Rider,  23  Conn.  172  ;  Stoughton  v.  730  ;  Edwards  v.  Griffiths,  48  O.  S. 

Mott,  13  Vt.  175  ;  Gormley  v.  Mc-  464. 

Intosh,  22  Barb.  271.  •*  Ante,  374  ;  Steph.   PI.  136,  note 

I  Gray  V   Bowles,  74  Mo,  419.  2;    Buddecke  v.   Ziegenhein,    122 

«  Vanfleet's  Coll.  Attack,  60.  Mo.  239  ;  Brownfleld  v.  Weicht,  9 

'  Vanfleet's     Coll.     Attack,     61 ;  Ind.  394.    The  presumption  of  juris- 

Spoors  V.  Coen,  44  O.  S.  497,  502.  diction,  in  a  court  of  general  juris- 

Cf.  McGregor  v.  Morrow,  40  Kan.  diction,  seems  to  include  not  only 


501  JURISDICTION  OF  THE  COURT.  §  470 

When  jurisdiction  depends  on  "the  amount  in  con- 
troversy," this  is  fixed  by  the  amount  claimed}  It  has  been 
held,  but  with  more  justice  than  logic,  that  where  a  court 
has  assumed  to  act  under  lawful  authority,  an  objection  to  its 
jurisdiction,  made  after  trial,  comes  too  late.^ 

470.  How  Want  of  Jurisdiction  taken  Advantage  of. — 
Want  of  jurisdiction  may  be  taken  advantage  of  by  motion — 
as  where  the  defendant  questions  the  pretended  service  of 
process,^  or  by  dennirrer  if  the  ground  appears  from  the  com- 
plaint,* or  by  answer,  if  the  ground  does  not  so  appear.^  An 
inquiry  as  to  the  jurisdiction  of  the  court  may  be  made  at 
any  stage  of  the  case;  and  when  made,  it  must  be  considered 
and  determined,  for  any  further  movement  would  be  the 
exercise  of  jurisdiction.^  And  if  a  court  has  not  jurisdiction 
before  an  amendment,  it  has  none  to  allow  the  amendment 
to  be  made  J  Any  personal  exemption  from  liability  to  an 
action  must,  to  be  made  available,  be  taken  advantage  of  by 
objection  interposed  before  pleading  to  the  merits.^ 

the  subject-matter,  and  parties,  but  efiFect,  "There  is  jurisdiction  if  I 

the  subject  of  the  action  as  well,  win,  but  not  if  I  lose." 

Godfrey   v.    Godfrey,    17   Ind.   6 ;  » Ante,  293,  note. 

where  it  was  held  that  a  complaint  *  Ante,  291,  292. 

for  partition,  in  such  court,  need  ^  Ante,  237. 

not  show  that  the  lands  are  within  « Rhode  Island  v.  Mass.,  12  Pet. 

the     county    where    the    suit    is  657  ;  Per  Hartley,  C.  J.,  in  Thomp- 

brought.  son  v.  Morton,  2  O.  S.  26,  28. 

1  Wagner  v,  Nagel,  33  Minn.  348.  ''  Denton  v.   Danbury,  48  Conn. 

2Ry.  Co.  V.  Power,  119  Ind.  269  ;  368. 

Ry.  Co.  V.  Heaton,  137  Ind.  1.    In  « Thompson  v.   Morton,  2  O.  S. 

this  last  case,  Howard,  C.  J. ,  says,  26.     Cf.    Smith  v.  Curtis,   7  CaL 

that  to  object  for  the  first  time,  584;  Bohn  v.  Devlin,  28  Mo,  319; 

after  losing  the  suit,  is  saying,  in  Hall  v.  Mobley,  13  Ga.  318  ;  Whyte 

V.  Gibbes,  20  How.  541. 


CHAPTER  XXVIII. 
ACTIONS   AND   DEFENSES. 

471.  Classification  of  Actions. — The  new  procedure  abol- 
ished the  distinction  between  actions  at  law,  and  suits  in 
equity ;  discarded  the  use  of  "  forms  of  action "  as  these 
were  known  to  the  common  law,  and  substituted  a  single 
civil  action  for  all  cases,  whether  the  right  involved,  or  the 
relief  demanded,  be  in  its  nature  legal  or  equitable.^  The 
distinctions  abolished  were  formal ;  inherent  differences  re- 
main. Considering  the  nature  of  the  right  involved,  and  of 
the  remedy  obtainable,  actions  are  susceptible  of  various 
divisions  and  classifications. 

There  are  inherent  differences  between  legal  rights  and 
equitable  rights,  and  between  legal  relief  and  equitable  relief ; 
and  these  have  not  been  abolished.  Amalgamation  of  legal 
and  equitable  rights,  or  of  legal  and  equitable  reliefs,  was 
neither  attempted  nor  intended ;  but  the  actions  to  enforce 
these  rights,  and  to  obtain  these  reliefs,  have  been  unified,  so 
that  both  kinds  of  rights  may  be  asserted,  and  both  kinds  of 
relief  obtained,  not  only  in  the  one  form  of  action,  but  in  the 
same  action ;  ^  and  actions  may  now,  as  formerly,  be  distin- 
guished as  legal  or  equitable  in  their  nature. 

The  common-law  division  of  personal  actions  into  those 
for  the  breach  of  a  contract — ex  contractu^  and  those  for 
wrongs  not  connected  with  contract — ex  delicto^  marked  a 
distinction  as  to  the  nature  of  the  primary  right  involved ; 
the  former  relating,  in  the  main,  to  rights  in  personam^  and 
the  latter  to  rights  in  rem? 

\n  equitable  actions,  the  reliefs  afforded  are,  (1)  ancillary 
and   provisional,    (2)  preventive,  and    (3)  final.*     Actions 

1  Ante,  49,  161-163.  « Ante,  87. 

3  Ante,  163.  *Ante,  139. 

502 


503  ACTIONS  AND  DEFENSES.  §472 

are  sometimes  distinguished  as  local,  and  transitory ;  the 
former  embracing  suits  that  must,  on  account  of  the  locus  of 
some  essential  fact,  be  brought  within  a  certain  county  or 
district ;  the  latter  embracing  suits  that  may  be  brought 
wherever  jurisdiction  of  the  defendant  may  be  obtained.^ 
And,  when  only  the  character  of  the  procedure  is  referred  to, 
actions  are  sometimes  distinguished  as  plenary  and  sum- 
mary ;  tlie  former  being  those  in  which  the  requisite  proceed- 
ings are  full  and  formal ;  the  latter  being  those  in  which  the 
requisite  proceedings  are  brief  and  informal.  Actions  are 
likewise  distinguished  as  iti  rem^  and  in  personam  ;  the  for- 
mer terra  designating  proceedings  instituted  against  a  specific 
thing,  and  the  latter  term  designating  proceedings  that  are 
against  the  person. 

This  chapter  is  designed  only  to  illustrate  the  application 
of  the  principles  of  pleading  to  operative  facts  ;  and  neither 
scientific  classification  nor  exhaustive  treatment  will  be  at- 
tempted. Only  a  few  of  the  actions  of  most  frequent  occur- 
rence will  be  noticed ;  and  these  will,  for  convenience,  be 
arranged  under  three  subdivisions  ;  to  wit,  (1)  actions  on 
contracts,  (2)  actions  for  torts,  and  (3)  actions  for  equitable 
relief.  Some  forms  of  pleadings  are  inserted,  but,  as  stated 
in  the  introduction,  these  are  merely  as  studies,  and  by  way 
of  illustration,  and  not  as  precedents. 

I.   ACTIONS   FOR   BREACH   OF   CONTRACT. 

472.  Account. — An  account  is  a  detailed  statement  of 
mutual  demands  in  the  nature  of  debt  and  credit  between  per- 
sons, arising  out  of  contract,  or  out  of  some  fiduciary  relation.^ 
To  constitute  an  account,  it  is  not  necessary  that  the  items  be 
entered  in  an  account-book  ;  ^  but  the  items  must  be  proper 
subjects  of  entries  in  an  account-book — such  as  goods  sold 
and  delivered,  work  and  labor  performed.^  The  term  "  ac- 
count "   usually   imports   a  general  course   of  dealing,  and 

iSteph.  PI.  330;  Ante,  128,  330,  Wis.  594.     C/.  TrapnaU  v.  Hill,  31 

468.  Ark.  345. 

^McWilliaras   v.   Allan,  45  Mo.  » Black  v.  Chesser,  12  O.  S.  621. 

578;  Stringham  v.  Supervisors,  24  *  Dallas  v. Feman,  25  0.  S. 635,637. 


§  472  APPLICATION  OF  PRINCIPLES.  504 

has  been  held  not  to  apply  to  an  isolated  transaction  resting 
upon  special  contract.^ 

An  account,  due  and  unpaid,  or  a  balance  due  thereon,  may 
be  the  subject  of  an  action  in  favor  of  the  creditor,  or  his 
assignee,  against  the  debtor.  The  law  regards  the  several 
items  in  the  general  course  of  dealings  as  unified,  so  as  to  con- 
stitute but  a  single  demand,  on  which  an  action  may  be 
brought.^  In  such  action,  the  primary  right  of  the  plaintiff 
is  the  right  to  have  the  debt  paid ;  and  the  non-payment  is 
the  delict.  But  the  primary  right  and  obligation  arise,  not 
from  the  account,  but  from  the  transactions  evidenced  by 
the  account ;  and  a  cause  of  action  thereon  should,  as  in 
other  cases,  state  the  operative  facts  ;  to  wit,  the  sale,  the 
value,  and  non-payment.  But,  regarding  the  account  as  an 
entirety  and  as  constituting  a  single  demand,  the  creditor  is 
authorized  to  make  it  the  ground  of  his  action  ;  and  the  com- 
plaint should  therefore  assert  the  account,  rather  than  the 
transactions  which  it  embodies.^ 

COMPLAINT  ON  ACCOUNT. 

Plaintiff,  in  a  general  course  of  dealing  with  defendant,  sold  and  de- 
livered to  him  the  goods  and  merchandise  specified  in  the  following 
account,  and  at  the  several  dates  therein  stated  :  [Here  state  the  items, 
with  date  and  value  of  each.]  The  amount  afiixed  to  each  item  is  the 
reasonable  value  thereof,  and  the  aggregate  value  is  $  ,  no  part  of 

which  has  been  paid,  and  for  which,  with  interest  from  ,  plaintiff 

prays  judgment  against  defendant.* 

Most  of  the  codes  authorize  a  short  complaint  on  an 
account,^  which  may  be  in  the  form  following  : 

SHORT  COMPLAINT  ON  ACCOUNT. 

There  is  due  plaintiff,  from  defendant,  on  an  account  of  which  the 
following  is  a  copy,  [Here  copy  the  account,  with  all  credits.]  the  sum 

1  McCamant  V.  Batsell,   59  Tex.  fied.     Ante,  170,  171,  176,  223,  224. 

363.  As  to  the  requirement  that  a  copy 

*  Waffle  V.  Short,  25  Kan.  503.  of  the  account  shall  be  attached  to 
»  Waffle  V.  Short,  25  Kan.   503 ;  and  filed  with  the  pleading,  see 

Tootle  V.  Wells,  39  Kan.  452.  ante,  370,  371. 

*  All  pleadings  should,  of  course,        ^  Ante,  367,  368. 
be  entitled,  subscribed,  and  veri- 


505  ACTIONS  AND  DEFENSES.  §§473-474 

of  dollars,  which  plaintifif  claims,  with  interest  from  the 

day  of  ,  and  for  which,  with  interest  as    aforesaid,   he    prays 

judgment  against  defendant. 

473.  Account  Stated. — An  account  stated  is  the  settle- 
ment of  an  account  between  parties,  whereby  a  balance  in 
favor  of  one  of  them  is  ascertained  and  agreed  to.  It  may 
involve  mutual  accounts,  or  but  one  account.  The  conver- 
sion of  an  open  account,  or  accounts,  into  an  account  stated, 
is  a  transaction  whereby  the  parties  mutually  assent  to  an 
ascertained  sum  as  the  true  balance  due  from  one  to  the  other. 

The  stating  of  an  account  is  not  the  making  of  a  new  con- 
tract, and  therefore  does  not  create  an  estoppel,  or  stop  the 
running  of  the  statute  of  limitations  ;  ^  though  it  is  conclusive 
upon  the  parties,  unless  impeached  for  fraud  or  mistake  ;  and 
when  fraud  or  mistake  is  claimed,  it  must  be  specially 
alleged,^  and  the  burden  is  upon  the  party  asserting  it.^ 

The  common-law  courts,  regarding  such  ascertainment  of 
the  state  of  accounts  between  the  parties  as  creating  an 
implied  promise  to  pay  the  ascertained  balance,  made  the 
breach  of  such  implied  promise  a  new  ground  of  action,  in 
assumpsit ;  the  common  count,  insimul  computasset,  being  the 
appropriate  remedy.  The  requisite  allegations  in  such  action 
were,  that  the  defendant  accounted  with  the  plaintiff,  and 
was  then  found  to  be  in  arrears  to  him,  a  named  sum,  which 
he  then  promised  to  pay,  but  has  not  paid.* 

474.  Account  Stated,  Continued. — An  account  stated  is 
still  regarded  as  constituting  a  ground  of  action  ;  though 
under  the  new  procedure  it  is  neither  necessary  nor  proper 
to  allege  a  promise  to  pay,  it  being  sufficient  toallege  the  facts 
from  which  the  duty  to  pay  arises.^     To  recover  on  an  account 

1  Chace  v.  Trafford,  116  Mass.  ^  McKinster  v.  Hitchcock,  19 
529;  S.  c.  17  Am.  Rep.  171.  Cf.  Neb.  100;  Warner  v.  Myrick,  16 
Coflfee  V.   Williams,  103  Cal.  550,    Minn.  91. 

556  ;  Throop  v.  Sherwood,  4  Gilm.  *  Ante,  98. 

(lU.)  93.  6  Mackey  v.  Auer,  8  Hun,  180  ; 

2  Barker  v.  Hoff,  52  How.  Pr.  Bouslog  v.  Garrett,  39  Ind.  338 ; 
382  ;  Warner  v.  Myrick,  16  Minn.  Heinrick  v.  England,  34  Minn. 
91 ;  Nourse  v.  Prime,  7  Johns.  Ch.  395. 

69. 


§475  APPLICATION  OF  PRINCIPLES.  506 

stated,  it  must  be  declared  upon  as  such.  It  is  not  proper  to 
annex  a  copy  of  the  account ;  the  action  being  on  the  settle- 
ment, and  not  on  the  account.^  If  the  original  transactions 
be  relied  upon  in  the  complaint,  they  are  open  to  proof  and 
disproof,  notwithstanding  the  settlement ;  ^  and  if  the  account 
stated  be  pleaded,  the  original  transaction  can  not  be  relied 
on,  upon  failure  to  prove  the  account  stated.^ 

The  statement  that  an  account,  a  copy  of  which  is  given, 
was  left  with  the  defendant,  and  after  a  considerable  time 
was  returned  by  him,  witliout  objection,  does  not  allege  an 
account  stated.^  Such  facts  are  evidential ;  and  while  they 
may,  as  evidence,  warrant  the  inference  of  assent  to  the  ac- 
count,^ and  might  support  an  averment  of  account  stated, 
they  do  not,  when  pleaded,  amount  to  such  averment. 

The  operative  facts  in  an  action  on  account  stated  are  ;  (1) 
the  accounting  and  its  result,  and  (2)  non-payment ;  and  these 
may  be  stated  in  this  form  : — 

COMPLAINT  ON  ACCOUNT  STATED. 

On  the  day  of  ,  plaintiff  and  defendant  stated  an  ac- 

count between  themselves,  whereby  there  was  found  to  be  due,  from 
defendant  to  plaintiff,  a  balance  of  dollars,  no  part  of  which 

has  been  paid,  and  for  which,  with  interest  from  said  date,  plaintiff 
prays  judgment  against  defendant. 

The  defendant  may,  by  answer,  deny  the  alleged  settle- 
ment, or  the  alleged  result ;  or  he  may  allege  fraud,  mistake, 
or  payment.  If  the  settlement  has  been  put  in  writing,  it 
may  sometimes  be  necessary  that  the  defendant  first  have 
affirmative  equitable  relief,  in  order  to  make  a  defense  of 
fraud  or  mistake  available.^ 

475.  Breaches  of  Contract  for  Services. — At  common 
law,  the  recovery  for  services  rendered  under  contract  was  by 

1  Buehler  v.  Reed,  11  Iowa,  182.      Volkening  v.  DeGraaf,  81  N.  Y. 

2  Packet  Co.  v.  Piatt,  22  Minn.     268. 

413  ;  McCormick  H.  M.  Co.  v.  Wil-        *  Brown  v.  Kimmel,  67  Mo.  430. 
8on,  39  Minn.  467  ;    Greenfield  v.        ^  Stenton  v.   Jerome,   54  N.   Y. 

Ins.  Co.,  47  N.  Y.  430.  480. 
«  Saville  v.  Ins.  Co.,  8  Mont.  419 ;        «  Ante,  257-259. 


507  ACTIONS  AND  DEFENSES.  ^475 

indebitatus  assumpsit,  or  quantum  meruit.^  There  is  author- 
ity for  the  use  of  these  common  counts  under  the  new  pro- 
cedure, notwithstanding  their  unscientific  character.^ 

Where  the  contract  has  been  fully  performed  by  the  em- 
ploye, the  elements  of  a  cause  of  action  are,  (1)  the  con- 
tract, (2)  the  rendition  of  the  services  thereunder,  (3)  the 
value,  if  not  agreed  on,  and  (4)  non-payment. 

COMPLAINT  FOR  AGREED  PRICE   OF  SERVICES. 

Plaintiff  worked  for  defendant,  as  a  clerk  in  his  store,  for  five  con- 
secutive months  beginning  on  the  day  of  ,  1895,  under 
a  contract  theretofore  made,  whereby  defendant  promised  plaintiff  to  pay 
him  for  such  service,  at  the  rate  of  $40  per  month.  He  has  paid  thereon 
$75,  leaving  due  and  unpaid  the  sum  of  one  hundred  and  twenty-five 
dollars,  for  which  amount,  with  interest  from  ,  plaintiff  prays 
judgment  against  defendant. 

Where  services  are  rendered  without  express  agreement  as 
to  the  price,  the  law  imposes  an  obligation  to  pay  the  reason- 
able value  thereof,  and  the  complaint  in  an  action  therefor 
may  be  in  this  form  ; — 

COMPLAINT  FOR  VALUE  OF  SERVICES. 

Plaintiff,  at  the  request  of  defendant,  worked  for  him,  in  the  capacity 
of  household  servant,  from  October  1,  1893,  to  October  1,  1895.  Said 
services  were  reasonably  worth  $4  per  week,  aggregating  four  hundred 
and  sixteen  dollars,  no  part  of  which  has  been  paid,  and  for  which,  with 
interest  from  ,  plaintiff  prays  judgment  against  defendant. 

If  an  employe  refuse  to  perform  his  agreement  to  serve, 
the  employer  has  a  right  of  action  for  damages,  and  a  com- 
plaint in  an  action  therefor  should  allege  the  contract,  the 
breach,  and  the  damage.  If  an  employer  refuse  to  allow  the 
employe  to  perform  any  service,  the  latter  has  a  right  of 
action,  the  elements  of  which  are,  the  contract,  readiness  of 
plaintiff  to  perform,  the  breach,  and  the  damage.  Where  an 
employe  is  wrongfully  discharged  during  his  term  of  employ- 
ment, he  may  elect  to  treat  the  contract  as  abandoned,  and 
sue  for  damages  for  the  breach  of  contract,  or  on  a  quantum 

1  Ante,  97.  ^  Ante,  369,  and  cases  cited. 


g  476  APPLICATION  OF  PRINCIPLES.  508 

meruit;'^  or  he  may  hold  the  contract  still  in  force,  and,  sub- 
ject to  certain  conditions,  sue  for  wages  as  they  become  due.^ 
And  one  prevented,  by  sickness,  from  completing  his  con- 
tract for  personal  services  may  recover  on  a  quantum  meruit.^ 

476.  Sales  of  Personal  Property. — A  variety  of  reme- 
dial rights  grow  out  of  sales  of  personal  property.  Where 
the  vendee  refuses  to  receive  and  pay  for  the  property,  the 
vendor  has  an  election  of  remedies.  He  may,  if  title  to 
specific  property  has  passed,  treat  the  property  as  belonging 
to  the  vendee,  and  either  sue  for  the  entire  price,  or,  resell 
the  property  for  the  vendee,  credit  him  with  the  net  pro- 
ceeds, and  sue  for  the  balance  ;  or  he  may  treat  the  sale  as 
abandoned,  retain  the  property  as  his  own,  and  sue  the  vendee 
for  the  excess  of  the  contract  price  over  the  market  value  of 
the  property.* 

If  the  vendor  refuses  to  deliver  the  property  to  the  vendee, 
he  too  has  a  choice  of  remedies.  He  may,  if  title  to  specific 
property  has  passed,  and  having  paid  or  tendered  payment, 
replevy  the  property ;  or  he  may  treat  the  sale  as  abandoned, 
recover  the  consideration,  if  paid,  and  damages,  if  the  market 
value  of  the  property  exceeds  the  contract  price.^  And  in 
some  exceptional  cases,  the  purchaser  may  have  equitable 
.relief  by  specific  performance.^ 

COMPLAINT  FOR  PRICE  OF  PROPERTY  SOLD. 

On  the  day  of  ,  plaintiff  sold  and  delivered  to  defend- 

ant one  horse,  for  the  agreed  price  of  $350,  to  be  paid  in  thirty  days 
thereafter.  Said  time  has  elapsed,  and  only  $40  of  said  sum  has  been 
paid.  Wherefore,  plaintiff  prays  judgment  against  defendant  for  two 
hundred  and  ten  doUars,  with  interest  from  the  day  of 

1  Ante,  448  ;  Knutson  v.  Knapp,  *  Benj.   on  Sales,  788,  and  cases 

35  Wis.  86.     Cf.  Weed  v.  Burt,  78  cited  ;  Dustan  v.  McAndrew,  44  N. 

N.  Y.  191  ;  Mackubin  v.  Clarkson,  Y.  72  ;   Shawhan  v.  Van  Nest,  25 

5  Minn.  247  ;  Allen  v.  Murray,  87  O.  S.  490  ;  Hayden  v.  Demets,  53 

Wis.  41  ;  Beers  v.  Kuehn,  84  Wis.  N.  Y.  426  ;  Brocklen  v.  Smeallie, 

33.  140  N.  Y.  70. 

a  Bowman  v.  HoUaday,  3  Oreg.  ^  Benj.  on  Sales,  870,  883. 

182.     Contra,  Weed  v.  Burt,  78  N.  «  Benj.  on  Sales,  884  ;  3  Pom.  Eq. 

Y.  191.  Jur.  1402,  and  notes. 

8  Green  v.  Gilbert,  21  Wis.  395. 
Cf.  Wolfe  V.  Howes,  20  N.  Y.  197. 


509  ACTIONS  AND  DEFENSES.  §  477 

If  the  property  has  not  been  delivered,  the  vendor,  in  an 
action  for  the  price,  must  allege  tender,  or  his  readiness  to 
deliver  ;  and  if  the  purchaser  sues  for  damages  for  non- 
delivery, he  must  allege  readiness  to  receive  and  pay.^  The 
want  of  such  averment  is  not  obviated  by  a  denial  of  the 
sale.2 

COMPLAINT  FOR  REFUSAL  TO  DELIVER. 

On  the  day  of  ,  defendant  sold  to  plaintiff  five  hundred 

bushels  of  wheat,  to  be  by  him  delivered  to  plaintiff,  at  ,  on  the 

day  of  ,  for  which  plaintiff  agreed  to  pay  defendant,  upon 

such  delivery,  the  sum  of  $300.  At  the  time  and  place  aforesaid,  plaint- 
iff was  ready  and  prepared  to  pay  said  sum,  and  to  receive  said  wheat, 
but  defendant  failed  so  to  deUver  the  same,  or  any  part  thereof.  At 
the  said'time  and  place  for  delivery,  the  said  wheat  was  reasonably  worth 
$400.  Wherefore,  plaintiff  prays  judgment  against  defendant  for  one 
hundred  dollars,  with  interest  from  the  said  day  of 

477.  Negotiable  Promissory  Notes. — A  negotiable  pro- 
missory note  imports  a  consideration,  and  in  an  action 
thereon,  no  consideration  for  the  note  need  be  alleged ;  and 
a  plaintiff  holding  the  legal  title  thereto  by  indorsement 
need  not  allege  a  consideration  for  the  indorsement.^  Such 
instrument  may  be  pleaded  by  stating  its  legal  substance,  or 
by  stating  its  literal  substance.*  A  complaint  by  the  payee 
of  a  negotiable  note  displays  a  remedial  right  when  it  shows 
the  making  and  delivery  of  the  note,  its  terms,  its  maturity, 
and  non-payment. 

COMPLAINT  BY  PAYEE  OF  PROMISSORY  NOTE. 

On  the  day  of  ,  defendant  made  and  delivered  to  plaintiff 

his  promissory  note  of  that  date,  whereby  he  promised  to  pay  to  plaintiff, 
or  order,  dollars,  three  months  after  date,  no  part  of  which  has 

been  paid,  and  for  which  sum,  with  interest  from  ,  plaintiff 

prays  judgment  against  defendant. 

In  an  action  by  an  indorsee  of  a  promissory  note,  the  com- 
plaint, to  show  a  legal   right  of  action  against  the  maker, 

1  Benj.    on  Sales,   677  ;    Metz  v.  (N.  C.  L.),  142 ;  Momry  v.  Kark,  19 

Albrecht,  52  111.  491 ;  Simmons  v.  O.  S.  375,  383. 
Green,  35  O.  S.  104.  s  Ante,  327,  and  cases  cited. 

*  Grandy  v.  McCleese,    2  Jones        *  Ante,  365,  and  cases  cited. 


§477  APPLICATION  OF  PRINCIPLES.  510 

must  further  allege  indorsement  by  the  payee  to  the  plaintiff ; 
and  to  sliow  such  right  against  the  indorser,  it  must  allege 
presentment,  demand,  non-payment,  and  notice,  unless  pro- 
test has  been  waived.  Some  courts,  regarding  demand  and 
notice  as  a  condition  precedent,  and  within  the  operation  of 
the  statute  authorizing  a  brief  averment  of  performance  of 
such  condition,!  have  held  it  sufficient  to  allege  simply  that 
payment  was  duly  demanded,  and  the  note  duly  protested.^ 
But  the  weight  of  authority  is  to  the  effect  that  such  statute 
relates  only  to  conditions  in  contracts,  and  not  to  condi- 
tions prescribed  by  law,  and  that  the  allegations  to  charge  an 
indorser  must  be  specific.^ 

COMPLAINT  BY  INDORSEE  AGAINST  INDORSER. 

On  the  day  of  ,  one  A.  B.  made  and  delivered  to  de- 

fendant his  promissory  note  of  that  date,  whereby  he  promised  to  pay 
to  defendant,  or  order,  dollars,  sixty  days  after  date  ;  and  on 

the  day  of  ,  said  defendant  duly  indorsed  and  delivered 

said  note  to  plaintiff.     On  the  day  of  ,  plaintiff  duly  pre- 

sented said  note  to  said  A.  B.,  and  demanded  payment  thereof,  which 
was  refused ;  of  all  which  plaintiff  gave  defendant  due  notice.  No  part 
of  said  note  has  been  paid  ;  wherefore,  plaintiff  prays  judgment  against 
defendant  for  said  sum  of  dollars,  with  interest  from  the 

day  of 

Some  of  the  codes  provide  that  one  or  more  of  the  persons 
severally  liable  on  an  instrument  may  be  included  as  defend- 
ants in  an  action  thereon.  Under  favor  of  this  provision, 
the  maker  and  the  indorser  of  a  promissory  note  may  be 
joined  as  defendants  in  an  action  on  the  note,  although  their 
obligations  are  several.  In  such  action,  the  complaint  must 
state,  in  one  cause  of  action,  facts  to  charge  the  maker,  and 
facts  to  charge  the  indorser.* 

The  short  forms  of  complaint  authorized  by  some  of  the 
codes  apply,  to  actions  on  promissory  notes. ^ 

1  Ante,  372.  Graham  v.  Machado,  6  Duer,  514  ; 

2  Gay  v.  Payne,  5  How.  Pr.  107 ;  Cook    v.   Warren,   88  N.    Y.   37 ; 
Adams  v.   Sherrill,   14    How.   Pr.  Rhoda  v.  Almeda  Co.,  53  Cal.  350. 
297.  *  Spellman  v.  Welder,  5  How.  Pr. 

8  Dye  V.  Dye,  11  Cal.  163  ;  Him-    5. 
melman    v.    Danos,   35    Cal.    441  ;        ^  ^nte,  367,  368. 


511  ACTIONS  AND  DEFENSES.  §§478-479 

478.  Promissory  Notes — Defenses. — In  the  hands  of 
the  original  payee,  a  negotiable  promissory  note  is  subject  to 
any  defense  that  would  defeat  recovery  on  contracts  gener- 
ally, and  all  matters  affecting  its  original  validity  may,  in 
an  action  between  the  original  parties,  be  inquired  into. 
But  a  bona  fide  transferee  of  the  legal  title  thereto,  for 
value,  before  dishonor,  takes  it  exempt  from  many  of  the 
infirmities  that  would  invalidate  it  in  the  hands  of  the 
payee. 

In  pleading  an  original  infirmity  in  an  action  by  an  indorsee, 
the  answer  should,  it  seems,  state  not  only  the  facts  that 
would  invalidate  the  instrument  in  the  hands  of  the  payee, 
but,  in  addition  thereto,  the  facts  that  make  the  original 
infirmity  available  against  the  indorsee — such  as,  notice,  want 
of  consideration  for  the  transfer,  or  transfer  after  maturity.^ 

A  defense  of  payment,  whether  pleaded  by  way  of  tra- 
verse, or  by  way  of  confession  and  avoidance,  should  be 
asserted  affirmatively.^ 

479.  Judgments  as  Grounds  of  Action  and  of  Defense. 
— When  judgment  is  entered  for  a  demand  sued  on,  the  origi- 
nal demand  passes  in  rem  judlcatam,  and  is  said  to  be  merged 
in  the  judgment.  For  this  reason,  every  judgment  is,  for 
most  purposes,  to  be  regarded  as  creating  a  new  obligation  ; 
and  this  is  the  effect  of  a  judgment,  whether  the  obligation 
merged  therein  arose  ex  contractu^  ex  delicto^  or  ex  lege?  Hence, 
a  final  judgment  becomes  a  right  of  action  as  soon  as  it  is 
rendered ;  and  the  judgment  creditor,  or  his  assignee,  may 
sue  thereon,  even  though  the  judgment  could  be  enforced  by 
execution.*     Actions   on  domestic  judgments  that  may   be 

1  Ante,  271.  upon  the  parties  ah  extra.     Anson 

2  Ante,  363.  on  Contr.  (3d  Am.  ed.)  8.     The  ob- 
8  7    Wait    Ac.     and    Def.    323  ;     ligation  of  a  judgment  is  not  con- 

Freem.  on  Judg.  231  ;  Hoi.  on  Jur.  tractual,   but  the    remedial    right 

(5th  ed.)  285.     Judgments  are  some-  arising  therefrom  is  quasi  ex  con- 

times  called  ' '  contracts  of  record. "  tractu. 

1  Par.  on  Contr.  7.     This  designa-  *  Headley  v.  Roby,  6  Ohio,  521 ; 

tion  is  unfortunate,  for  it  suggests  Clark  v.  Goodwin,  14   Mass.    237  ; 

that  the  right  and  obligation  of  a  Linton  v.    Hurley.   114   Mass.    76 ; 

judgment   arise   from  agreement ;  Simpson  v.  Cochran,  23  Iowa,  81 ; 

whereas  they  are  really  imposed  Ives  v.  Finch,  28  Conn.  112. 


§480  APPLICATION  OF  PRINCIPLES.  512 

enforced  by  execution  are  not  favored ;  and  in  some  states  a 
statutory  limitation  has  been  imposed  upon  the  exercise  of 
this  common-law  right. 

It  is  a  familiar  principle  that  judgment  against  one  of  joint 
obligors  will  bar  a  subsequent  action  against  the  others.  This 
is  because  the  judgment  merges  the  entire  demand. ^  But 
judgment  against  one  of  joint  trespassers  does  not  merge  the 
entire  right  of  action,  because  the  liability  of  joint  trespassers 
is  in  its  nature  several.  If  a  demand  that  is  entire  be  split, 
and  judgment  obtained  for  part  of  it,  the  judgment  is  a  bar 
to  another  action  on  the  other  part  of  the  demand,  because 
the  whole  claim  is  merged  in  the  judgment.  But  care  must 
be  taken  to  distinguish  between  a  single  demand,  and  several 
demands.  For  example,  if  one  be  wrongfully  dismissed  from 
the  service  of  another,  he  may  maintain  successive  actions — 
one  for  damages  for  the  wrongful  dismissal,  and  another  for 
wages  earned  and  unpaid.^  This  would  not  be  a  dissevering 
of  a  single  demand,  for  the  plaintiff  would  have  two  distinct 
rights  of  action  ;  and  might  join  them  in  one  action,  or  enforce 
them  by  separate  suits. 

480.  Judgments — Foreign. — A  foreign  judgment  can  be 
enforced  only  by  action.  The  tribunals  of  one  country  are 
not  bound  to  enforce  a  judgment  rendered  in  a  foreign  country, 
unless  there  are  reciprocal  treaties  to  that  effect.  But  in 
■countries  where  the  common  law  obtains,  a  foreign  judgment 
^will  be  enforced,  not  because  of  any  treaty,  nor  by  virtue  of 
■any  statute,  but  upon  the  principle  that  "  where  a  court  of 
competent  jurisdiction  has  adjudicated  a  certain  sum  to  be 
due  from  one  person  to  another,  a  legal  obligation  arises  to 
pay  that  sum,  on  which  an  action  of  debt  to  enforce  the  judg- 
ment may  be  maintained."  ^     And  since  the  right  to  enforce 

1  In    Sheehy    v.     Mandeville,    6  same  court  that    pronounced    it. 

Oranch,   253,    Marshall,    C.    J.,  Mason  v.  Eldred,  6  Wall.  231. 

held  that  a  judgment  against  one  ^  Perry  v.  Dickerson,  85  N.   Y. 

of  the  makers  of  a  joint  note  did  345. 

not  merge  the  note  as  to  the  other  ^  Per  Parke,  B.  ,  in  Williams  v. 

maker.     But     this     decision     has  Jones,  13  M.  &  W.  628,  633.     Cf. 

rarely  been  assented  to,  has  been  Godard  v.  Gray,  L.  R. ,  6  Q.  B.  139, 

doubted  and  criticised  in  England,  148. 
and  has    been   overruled  by   the 


513  ACTIONS  AND  DEFENSES.  §481 

a  foreign  judgment  by  action  rests  upon  this  principle,  it 
follows,  that  whatever  will  negative  the  existence  of  such 
legal  obligation,  or  excuse  the  defendant  from  performance 
of  it,  must  be  a  defense  to  an  action  thereon.  It  may  there- 
fore be  shown  in  defense,  that  the  foreign  court  did  not  have 
jurisdiction  of  the  subject-matter,  or  of  the.  person  of  the  de- 
fendant.^ 

As  to  whether  the  foreign  judgment  is  conclusive  upon  the 
merits,  the  authorities  are  not  agreed.  Some  are  to  the  effect 
that  when  a  foreign  judgment  is  asserted  as  the  foundation 
of  an  action,  it  is  only  prima  facie  evidence  of  indebtedness  ;^ 
but  that  when  asserted  as  a  defense,  it  is  conclusive.^  It  is 
believed,  however,  that  the  tendency  of  modern  authorities 
is,  to  regard  foreign  judgments  as  equally  conclusive  on  the 
merits,  whether  asserted  as  a  cause  of  action,  or  as  a  defense.* 
It  matters  not  that  the  original  demand  would  not  be  enforced 
by  the  court  called  upon  to  enforce  the  judgment.^ 

481.  Judgments — Inter-state  Comity. — The  constitu- 
tion of  the  United  States  provides,  that  "  full  faith  and  credit 
shall  be  given  in  each  state,  to  the  public  acts,  records,  and 
judicial  proceedings  of  every  other  state  ;  and  the  Congress 
may,  by  general  laws,  prescribe  the  manner  in  which  such 
acts,  records,  and  proceedings  shall  be  proved,  and  the  effect 
thereof."  ®  Under  this  provision,  which  converts  a  rule  of 
comity  into  a  rule  of  constitutional  obligation,  the  faith  and 
credit  to  which  the  judgment  of  a  court  in  one  state  is  en- 


1  2  Par.  on  Contr.  609  ;  Sto.  on  v.  Meyer,  49  N.  Y.  571 ;  Low  v. 
Confl.  of  Laws,  547  ;  Kerr  v.  Kerr,  Mussey,  41  Vt.  393  ;  2  Kent  Com. 
41  N.  Y.  272  ;  Mowry  v.  Chase,  100  120,  note  a.  But  see  12  Eng.  and 
Mass.  79 ;  Carleton  v.  Bickford,  13  Am.  Encyc.  of  Law,  147  n,  and 
Gray,  591.  note,  where  it  is  asserted  (1)  that 

2  Sto.  Confl.  of  Laws,  607 ;  An-  the  foreign  judgment  does  not 
drews  v.  Herriot,  4  Cow.  508,  523,  merge  the  original  ground  of  ac- 
note  ;  Hall  v.  Odber,  11  East,  118  ;  tion,  and  (2)  that  consequently  the 
Robertson  v.  Sturth,  5  Q.  B.  941  ;  plaintiff  may  sue  either  on  his 
2  Kent  Com.  120.  Cf.  Monroe  v.  foreign  judgment,  or  on  his  origi- 
Douglass,  4  Sandf.  Ch.  126,  181.  nal  right  of  action. 

8  Sto.  on  Confl.  of  Laws,  598.  ^  Freem.  on  Judg.  217. 

*  Freem.  on  Judg.  597  ;  Rankin  ^  Const.  Art.  IV.  sec.  1. 
V.  Goddard,  55  Me.  389  ;  Konitzky 

33 


§  482  APPLICATION  OF  PRINCIPLES.  514 

titled  in  the  courts  of  another  state  is  the  same  faith  and 
credit  to  which  it  is  entitled  in  the  state  where  rendered.^ 
It  may,  like  a  foreign  judgment,  be  impeached  for  want  of 
jurisdiction  in  the  court  rendering  it,'^  or  because  not  respon- 
sive to  the  pleadings.^  A  discharge  of  the  judgment  may,  of 
course,  be  shown  ;  and  the  statute  of  limitations  of  the  state 
where  the  action  is  brought  will  be  available,  if  the  limitation 
is  not  so  unreasonable  as,  in  effect,  to  preclude  a  remedy 
altogether.* 

482.  Judgments — Inter-state  Comity,  Continued. — 
Under  the  authority  of  the  constitution,  congress  enacted 
that  the  records  and  judicial  proceedings  of  the  courts  of  any 
state  or  territory  shall  be  proved  and  admitted  in  any  other 
court  within  the  United  States  "  by  the  attestation  of  the 
clerk  and  the  seal  of  the  court  annexed,  if  there  be  a  seal, 
together  with  a  certificate  of  the  judge,  chief  justice,  or  pre- 
siding magistrate,  that  the  said  attestation  is  in  due  form."^ 
It  has  been  held,  that  a  justice's  judgment,  though  within 
the  constitutional  provision,  when  proved,  is  not  within  the 
congressional  enactment  as  to  the  manner  of  proof.^  Only  a 
court  of  record  can  authenticate  its  records  and  proceedings 
in  the  manner  provided  by  the  act  of  congress — by  the  certifi- 
cate of  the  clerk,  the  seal  of  the  court,  if  it  has  a  seal,  and  by 
the  certificate  of  the  judge,  chief  justice,  or  presiding  magis- 

1  Mills  V.  Duryea,  7  Cranch,  481 ;  judgment.  Otherwise,  the  con- 
Hampton  V.  McConneU,  3  Wheat,  stitutional  provision  would  give  to 
234.  judgments  more  force  abroad  than 

2  Harris  v.  Hardeman,  14  How.  at  home.  Pennywit  v.  Foote,  27 
334  ;  Galpin  v.  Page,  18  Wall.  350  ;  O.  S.  600,  and  authorities  cited. 
Grover  &  B.  M.  Co.  v.  Radcliffe,  ^  Reynolds  v.  Stockton,  11  Sup. 
137  U.  S.  287.  Some  cases  hold  Ct.  Rep.  773 ;  Tex.  &  P.  Ry.  Co.  v. 
that  where  the  foreign  record  shows  So.  Pac.  Ry.  Co.,  137  U.  S.  48. 
affirmatively  the  existence  of  juris-  *  Jacquette  v.  Hugunon,  2  Mc- 
dictional  facts,  it  can  not  be  con-  Lean,  129 ;  Christmas  v.  Russell,  5 
troverted   in  the  tribunals  of  an-  Wall.  290. 

other  state.     4  Wait  Ac.    &  Def.  ^  i  U.  S.  Rev.  Stat.  905. 

192,     and    cases    cited.     But   the  ®  Silver  Lake  Bk.  v.  Harding,  5 

weight   of  authority,   as    well  as  Ohio,  545  ;  Snyder  v.  Wise,  10  Barr, 

reason  and  principle,  authorizes  an  157  ;  Robinson  v.  Prescott,  4  N.  H. 

inquiry  into  the  jurisdiction  of  the  450.     Cf.    Taylor    v.    Barron,    10 

court  that  rendered  the  original  Foster,  78. 


515  ACTIONS  AND  DEFENSES.  §483 

trate.  An  action  may  be  maintained  on  the  judgment  of  a 
justice  in  another  state,  but  his  judgment  must  be  authen- 
ticated in  some  other  way.  This  is  usually  done  by  the 
certificate  of  the  justice,  and  that  of  the  clerk  of  his  county, 
under  his  official  seal. 

483.  Judgments  as  Defenses. — It  is  a  firmly  established 
doctrine,  that  a  matter  once  adjudicated,  by  a  court  of  com- 
petent jurisdiction,  can  not  again  be  drawn  in  question  between 
the  same  parties  or  their  privies.  Res  judicata  pro  veritate 
accepitur.^  This  doctrine  rests  upon  principles  of  expediency, 
of  justice,  and  of  public  policy  ;  it  operates  upon  parties  and 
their  privies  ;  and  it  applies  to  an  entire  right  of  action,  or  to 
particular  facts  adjudicated.  To  make  a  judgment  a  bar  to 
a  subsequent  action  on  the  same  right  of  action,  it  must  ap- 
pear that  the  former  suit  was  determined  upon  its  merits.^ 
A  judgment  by  confession,  by  consent,  or  upon  default,  is  as 
conclusive  as  one  rendered  after  a  trial.^  A  judgment  on 
demurrer,  if  it  involves  the  merits  of  the  case,  is  conclusive 
as  to  the  matter  so  adjudicated  ;  *  aliter^  if  the  demurrer  be 
sustained  because  of  the  omission  of  some  essential  alle- 
gation in  a  pleading,  and  which  is  supplied  in  the  second 
suit.^  A  judgment,  to  be  conclusive  as  to  either  of  the 
parties  litigant,  must  be  conclusive  upon  both.^     And  where 

1  Hugh's  Technology  of  Law,  60  ;  v.  Caldwell,  2  Wall.  35  ;  Sawyer  v. 
Broom's  Max.  327-351  ;  6  Wait  Ac.  Woodbury,  7  Gray,  499  ;  Paine  v. 
& Def.  767-812.  Ins.  Co.,  12  R.  I.  44. 

2  Foster  v.  Busteed,  100  Mass.  ^  Mining  Co.  v.  Mining  Co.,  157 
409  ;  Rose  v.   Hawley,  141   N.  Y.  U.  S.  683. 

366;  Jamaica  Pond,  etc.,  Co.  v.  ^  Wilson  v.  Ray,  24  Ind.  156; 
Chandler,  121  Mass.  1  ;  Verhein  v.  Ferguson  v.  Carter,  8  Ga.  524  ; 
Schultz,  57  Mo.  326 ;  Gay  v.  Stan-  Gray  v.  Gray,  34  Ga.  499  ;  Robin- 
cell,  76  N.  C.  369  ;  Peterson  v.  son  v,  Howard,  5  Cal.  428  ;  Perkins 
Nehf,  80  111.  25  ;  Houston  v.  Mus-  v.  Moore,  16  Ala.  17  ;  Bouchaud  v. 
grove,  35  Tex.  594  ;  Loudenback  v.  Dias,  3  Denio,  238  ;  Gould  PI.  ix. 
Collins,   4  O.   S.    251  ;  Holland  v.  43^6. 

Hatch,  15  O.  S.  464;  Wilcox  v.  ^ Gould v.Evansville,etc.,Ry.Co., 
Lee,  26  How.  418.  Extrinsic  evi-  91  U.  S.  526  ;  Nickelson  v.  Ingram, 
dence  is  admissible  to  show  the  24  Tex.  630.  Cf.  Stevens  v.  Dun- 
ground  of  the  judgment.  Marcel-  bar,  1  Blackf .  56  ;  Stowell  v.  Cham- 
lus  V.  Countryman,  65  Barb.  201 ;  berlain,  60  N.  Y.  272. 
Bottorflf  V.  Wise,  53  Ind.  32  ;"^Iiles  ^  Nelson  v.  Brown,  144  N.  Y.  384. 


§  484  APPLICATION  OF  PRINCIPLES.  516 

one  has  been  defeated  in  his  action,  by  reason  of  his  neglect 
to  perform  some  preliminary  act  necessary  to  perfect  his  right 
of  action,  such  as  the  giving  of  notice,  the  judgment  is  not 
a  bar  to  another  action  begun  after  the  performance  of  the 
requisite  preliminary  act.^  The  former  adjudication  was  not 
upon  the  merits ;  and,  besides,  the  new  action  is  on  a 
different  state  of  facts.  It  is  like  defeat  in  an  action  on  a 
promissory  note,  brought  before  the  note  is  due. 

484.  Judgments  as  Defenses,  Continued. — A  judgment 
of  discontinuance,^  or  of  nonsuit,^  is  not  a  bar  to  another 
action ;  nor  is  a  judgment  of  dismissal,  unless  it  be  entered 
upon  the  merits.* 

The  doctrine  of  res  judicata  is  sometimes  said  to  embrace 
matters  not  in  fact  decided,  but  which  might  have  been  de- 
cided in  the  former  case.^  But  this  application  of  the  doc- 
trine must  be  limited  to  only  such  matters  as  might  have 
been  asserted  as  a  defense  in  the  former  action,  and  which,  if 
considered  in  the  subsequent  suit,  would  involve  an  inquiry 
into  the  merits  of  the  former  judgment.^  Such  matters  are 
regarded  as  necessarily  involved  in  the  former  suit.  In  an 
action  on  a  note,  whereon  the  defendant  had  made  payments, 
he  neither  pleaded  nor  offered  to  prove  the  payments  ;  it  was 
held  that  he  could  not,  in  a  new  action,  recover  the  amount  of 
such  payments.'^     In  an  action  to  .recover  the  price  of  goods 

1  Rose  V.  Hawley,  141  N.  Y.  366.  232  ;  Van  Vliet  v.  Olin,  1  Nev.  495. 

2  Hull  V.  Blake,  13  Mass.  153, 155  ;  Judgment  of  dismissal,  entered  on 
Miller  v.  Mans,  28  Ind.  194;  De-  plaintiff's  own  motion,  and  without 
lany  v.  Reade,  4  Iowa,  292 ;  Gillilan  the  consent  of  the  defendant,  is  not 
V.  Spratt,  41  How.  Pr.  27.  a  bar  to  another  action.     Moore  v. 

3  Jay  V.    Carthage,  48  Me.   353  ;  McSleeper,  102  Cal.  276. 
Holland  v.  Hatch,  15  O.    S.    464 ;  ^  Wells  on  Res  Judicata,  248  ;  6 
Eaton   V.   George,   40  N.    H.  258 ;  Wait  Ac.   &  Def.    786  ;    Hites  v. 
Audubon  v.    Excelsior    Ins.    Co.,  Irvine's  Adm.,  13  O.  S.  283;  Stan- 
27  N.  Y.  216  ;  Wade  v.  Howard,  8  ton  v.  Kenrick,  135  Ind.  382. 
Pick.  353.  «  6  Wait's  Ac.  &  Def,  786,  and 

*  Loudenback  v.  Collins,  4  O.  S.  cases  cited  ;  Bell  v.  McCoUoch,  31 

251  ;  Crews  v.  Cleghorn,    13   Ind.  O.  S.  397  ;  White  v.  Lockwood,  39 

438  ;  Wheeler  v.  Buckman,  51  N.  O.  S.  141.     Cf.  Martin  v.  Roney,  41 

Y.  391 ;  Porter  v.  Vaughn,  26  Vt.  O.  S.  141. 

624  ;  Sayles  v.  Tibbitts,  5  R.  I.  79  ;  ^  Swensen  v.  Cresop,  28  O.  S.  668. 
Hughes  V,  United  States,  4  Wall. 


517  ACTIONS  AND  DEFENSES.  §485 

sold  and  delivered,  the  defendant  pleaded  payment ;  but  hav- 
ing lost  his  receipt,  he  failed  to  maintain  his  defense,  and  the 
plaintiff  took  judgment.  After  paying  this  judgment,  he 
found  his  receipt,  and  sued  to  recover  the  money  he  had 
twice  paid.  He  was  defeated  in  this  second  action,  on  the 
ground  of  former  adjudication.^ 

485.  Judgments — How  Pleaded. — In  pleading  a  judg- 
ment, it  is  not  necessary  to  aver  any  of  the  anterior  proceed- 
ings on  which  it  is  based,  for  as  to  these  the  parties  are 
concluded  by  the  judgment  ;^  and  the  judgment  need  not  be 
set  out  in  Jiceo  verba,  but  may  be  pleaded  by  its  legal  effect ;  ^ 
nor  need  it  be  averred  that  the  judgment  remains  in  force, 
for  this  is  presumed.*  If  the  judgment  asserted  be  that  of  a 
court  of  general  jurisdiction,  no  jurisdictional  fact  need  be 
stated ;   aliter,  if  it  be  the  judgment  of  an  inferior  court.^ 

Where  the  judgment  of  an  inferior  domestic  tribunal  is 
pleaded,  the  court  will  take  judicial  notice  of  the  law  con- 
ferring jurisdiction,  and  it  will  be  necessary  only  to  allege 
the  facts  to  warrant  the  assumption  of  jurisdiction  over  the 
parties  ;  but  where  the  judgment  of  an  inferior  foreign  tri- 
bunal is  pleaded,  the  allegations  must  show  jurisdiction  of 
both  parties  and  subject-matter.^  The  general  issue  in  an 
action  on  a  judgment  is  nul  tiel  record.  This  plea  questions 
the  existence  of  the  judgment,  and  is  for  impeachment  of  the 
record.'^  A  defense  requiring  evidence  de  hors  the  record 
must  be  specially  pleaded.  A  plea  to  the  jurisdiction  of  a 
court  of  general  jurisdiction  must  state  the  facts  showing 
want  of  authority  to  render  the  judgment ;  and  a  plea  to  the 
jurisdiction  of  the  person  must  negative  every  means  by 
which  such  jurisdiction  may  be  acquired.^     A  denial  of  resi- 

1  Marriott  v.   Hampton,   7  T.  R.        "^  Freem.   on  Judgm.   459  ;   Van 
269.  Fleet's  CoU.  Attack,  526  ;  12  Encyc. 

2  Freeman  on  Judgm.  450.  of  Law,  149  c. 

8  Cent.    Bk.    v.   Veasy,   14  Ark.  ^  Barkman  v.    Hopkins,   6  Eng. 

671  ;  Ante,  365,  366.  157  ;  Struble  v.  Malone,  3  Clarke, 

*  Ante,  375.  586  ;  Price   v.   Ward,   25  N.  J.  L. 

5  1  Chit.  PI.  354 ;  Ante,  374,  and  225  ;  Freem.   on    Judgm.    455  ;  12 
cases  cited.  Encyc.  of  Law,  149  c,  note. 

6  Freem.  on  Judgm.  454. 


§  486  APPLICATION  OF  PRINCIPLES.  518 

deuce  within  the  state  is  not  sufficient ;  absence  from  the 
state  must  be  alleged.^ 

486.  Pleading  Judgments,  Continued. — To  be  available 
in  bar,  and  as  an  estoppel,  a  judgment  must  be  pleaded,  if 
there  is  opportunity  to  plead  it.^  Where  there  is  opportu- 
nity to  plead  a  former  adjudication,  and  it  is  not  pleaded,  but 
is  introduced  in  evidence  under  a  denial,  it  is  not  conclusive, 
and  other  evidence  may  be  introduced  to  sliow  tlie  truth  as 
to  the  matter  so  claimed  to  have  been  adjudicated.^ 

The  reason  for  the  rule  that  a  former  adjudication,  if 
relied  upon  as  a  bar,  should  be  pleaded,  is,  that  such  former 
adjudication  is  new  matter,  and  should,  like  other  defenses 
of  new  matter,  be  pleaded,  so  that  the  court  may,  as  matter 
of  law,  determine  as  to  its  effect  and  sufficiency.  But  when 
the  matter  to  which  the  former  adjudication  applies  is  dis- 
tinctly alleged  by  one  party,  and  the  other  party  takes  issue 
on  the  fact,  instead  of  pleading  the  estoppel,  the  jury  are  at 
liberty  to  find  the  truth  as  to  such  issue. 

COMPLAINT  ON  DOMESTIC  JUDGMENT  OF  COURT  OF  GENERAL 
JURISDICTION. 

At  the  October  Term,  1895,  of  the  Court  of  Common  Pleas  of 
County,  Ohio,  to  wit,  on  the  day  of  ,  plaintiff  recovered  a 

judgment  of  said  court  against  defendant  for  the  sum  of  dollars, 

no  part  of  which  has  been  paid,  and  for  which,  with  interest  from 
plaintiff  prays  judgment  against  defendant. 

COMPLAINT  ON  FOREIGN  JUDGMENT. 

At  the  October  Term,  1895,  of  the  Circuit  Court  of  the  County  of 
Cook,  in  the  State  of  Illinois,  to  wit,  on  the  day  of  .  in  an 

action  therein  pending,    wherein  this  plaintiff  was  plaintiff,  and  this 

1  Wilson  V.  Jackson,  10  Mo.  330.  Barb.    298  ;  Brady  v.    Murphy,   19 

2Lockwoodv.  Wildman,  13  0hio,  Ind.   258;   Adkins  v.  Hudson,    19 

430;  Meiss  v.   Gill,  44  O.  S.  253;  Ind.  392;  Piercyv.  Sabin,  10  Cal. 

Lyon  V.  Talmadge,  14  Johns.  501  ;  22  ;  S.  C.  70  Am.  Dec.  692. 

Van  Orman  v.  Spafford,  16  Iowa,  ^  Reynolds  v.  Stanbury,  20  Ohio, 

186  ;  Krekeler  v.  Ritter,  62  N.  Y.  344 ;  Meiss  v.  Gill,  44  O.  S.  253  ;  1 

372  ;  Redmond  v.   Coffin,    2  Dev.  Gr.  Ev.  531 ;  Vooght  v.  Winch,  2 

Eq.  437  ;  Fanning  v.  Ins.  Co.,  37  O.  Barn.  &  Aid.  662  ;  Picquet  v.  Mc- 

S.    344  ;   Hendricks  v.  Deeker,  35  Kay,  2  Blackf.  465. 


519  ACTIONS  AND  DEFENSES.  §487 

defendant  was  defendant,  plaintiff  recovered  a  judgment  of  said  court 
against  defendant  for  $  damages,  and  $  costs,  no  part  of 

which  has  been  paid.  Said  Circuit  Court  was  then  a  court  of  general 
jurisdiction,  and  at  the  date  aforesaid  it  had  jurisdiction  of  the  defend- 
ant by  personal  service  of  its  process. 

Wherefore,  plaintiff  prays  judgment  against  defendant  for  said 
aggregate  sum  of  dollars,  with  interest  from 

487.  Breach  of  Promise  to  Marry. — In  an  engagement 
to  marry,  the  consideration  for  the  promise  of  each  is  the 
promise  of  the  other.  The  law  distinguishes  between  "  an 
agreement  made  upon  consideration  of  marriage,"  and  an 
agreement  to  marry  ;  and  it  is  accordingly  held  that  a  con- 
tract to  marry  need  not  be  in  writing,^  unless  "  not  to  be 
performed  within  the  space  of  one  year  from  tlie  making 
thereof."  ^  It  is  against  public  policy  to  compel  specific 
performance  of  a  contract  to  marry ,3  so  the  only  remedy  is 
an  action  for  damages  ;  *  and  the  promise  is  so  far  of  a  personal 
nature,  that  it  has  generally  been  held  that  the  right  of 
action  for  breach  thereof  abates  with  the  death  of  either 
party.^ 

The  complaint  must  allege  the  mutual  promise  of  the 
parties,  and  the  failure,  refusal,  or  incapacity  of  the  defend-' 
ant  to  perform  the  contract.  If  the  promise  of  the  defendant 
be  upon  condition,  and  the  condition  be  reasonable  and  valid, 
performance  of  the  condition  must  be  alleged.  And,  the 
contract  being  executory,  the  plaintiff  must  allege  his  or  her 
readiness  and  willingness  to  marry  the  defendant.^  If, 
before  the  date  fixed  for  the  marriage,  one  of  the  parties 
renounce  the  contract,  or  marry  another,  a  right  of  action 
accrues  at  once.'^ 

1  Cork  V.  Baker,  1  Stra.  34  ;  Har-  ^  Grubb  v.  Suit,  33  Gratt.  203 
rison  v.  Cage,  1  Ld.  Raym.  386'  Wade  v.  Kalbfleish,  58  N.  Y.  283 ; 
Short  V.  Stotts,  58  Ind.  29.  Stebbins  v.   Pahner,   1   Pick.    71 ; 

2  Nichols  V.  Weaver,  7  Kan.  373  ;  Smith  v.  Sherman,  4  Cush.  408. 
Derby  v.  Phelps,  2  N.  H.  515.  Cf.  Contra,  Shuler  v.  MiUsaps,  71  N. 
Lawrence  v.  Cook,  56  Me.  187.  C.  297. 

8  Cheyney  v.  Arnold,  15  N.  Y.  «  Graham  v.  Martin,  64  Ind.  567. 
345.  ^  Ante,  398,  and  cases  cited. 

*  Wightman  v.  Coates,  15  Mass. 
1. 


§  488  APPLICATION  OF  PRINCIPLES.  620 


COMPLAINT  FOR  BREACH  OF  PROMISE  TO  MARRY. 

On  the  day  of  ,  plaintiff  and  defendant  each  promised  to 

marry  the  other,  within  a  reasonable  time  thereafter.  Plaintiff  has 
ever  since  been  willing  and  ready  to  marry  defendant,  who,  although 
such  reasonable  time  has  elapsed,  neglects  and  refuses  to  marry  plaint- 
iff, to  her  damage  dollars,  for  wliich  sum  she  prays  judgment 
against  him. 

The  defenses  to  such  actions  are  numerous.  Infancy  is  a 
good  defense,^  though  it  has  frequently  been  held  that  an 
infant  may  maintain  the  action.^ 

488.  Common  Carriers  of  Goods. — A  common  carrier 
is  one  who,  as  a  regular  business,  undertakes,  for  hise,  to 
carry  the  goods  of  such  as  choose  to  employ  him.  Such 
carrier  is  bound  to  receive,  within  reasonable  limitations  and 
conditions,  all  goods  offered  to  him  for  transportation  ;  and  he 
is  generally  liable  to  an  action  for  refusal,  unless  he  rejected 
the  goods  for  want  of  room,  or  because  they  were  dangerous, 
or  in  an  unfit  condition  for  transportation,  or  would  subject 
him  to  unreasonable  loss  or  inconvenience. 

The  responsibility  of  a  common  carrier  of  goods  begins 
with  the  delivery  of  the  goods  to  him,^  and  ends  with  de- 
li verj'-  thereof  by  him.* 

In  an  action  for  the  value  of  goods  lost  by  a  common 
carrier,  the  complaint  should  allege  that  the  defendant  was  a 
common  carrier,  and  should  state  the  contract,  the  plaintiff's 
ownership  of  the  goods,  and  their  delivery  to  the  defendant — 
which  facts  show  the  primary  right  and  duty, — and  it  should 
allege  the  non-delivery  by  the  defendant,  which  is  the  delict. 

1  Bush  V.  Wick,  31  O.  S.  521  ;  100 ;  Ry.  Co.  v.  Barrett,  36  O.  •  S. 
Warwick  v.  Cooper,  5  Sneed,  659  ;  )»448. 

Cannon  v.  Alsbury,  1  A.  K.  Marsh.  *  Golden    v.    Manning,     3  Wils. 

56.  429  ;  s.  c.  2  W.  Bl.  916 ;  Ins.  Co.  v. 

2  Willard  v.  Stone,  7  Cow.  22;  Ry.  Co.,  144  N.  Y.  200;  Gibson  v. 
Huntv.Peake,5Cow.475.  Contra,  Culver,  17  Wend.  305;  Fisk  v. 
Pool  V.  Pratt,  1  D.  Chip.  (Vt.)  252.  Newton,  1  Denio,  45.     Cf.  Adams 

8  Merriam  v.  Ry.  Co.,  20  Conn.     v.  Blankenstein,  2  Cal.  413. 
354;  Green  v.  Ry.    Co.,    38  Iowa, 


521  ACTIONS  AND  DEFENSES.  §489 


COMPLAINT  FOR  GOODS  LOST  BY  A  COMMON  CARRIER. 

On  the  day  of  ,  plaintiff  delivered  to  defendant,  who  was 

then  a  common  carrier,  the  following  goods  of  the  plaintiff,  to  wit, 
[Here  describe  the  goods.]  wliich  goods  the  defendant  agreed,  for  a  con- 
sideration to  be  paid  him  by  plaintiff,  to  carry  from  to  ,  and 
there  to  deliver  them  for  plaintiff  to  .  The  defendant  failed  so  to 
carry  or  deliver  said  goods,  and  the  same  were  wholly  lost  to  plaintiff, 
to  his  damage  dollars,  for  which  sum,  with  interest  from 
he  prays  judgment  against  defendant. 

489.  Common  Carriers  of  Passengers. — The  general 
rule  is,  that  a  common  carrier  of  passengers  must  carry  all 
persons  who  offer  themselves  for  passage ;  ^  though  he  may 
reject  one  because  he  is  an  unfit  person,^  or  refuses  to  pay 
fare,^  or  refuses  obedience  to  any  reasonable  regulations ; 
and  he  may,  for  want  of  room,  reject  any  applicant. 

Such  carrier  is  liable  for  wrongfully  refusing  to  carry,  for 
wrongfully  ejecting  a  passenger,  for  failure  or  refusal  to 
carry  to  the  agreed  destination,  for  carrying  beyond  the 
agreed  destination,  for  loss  of  baggage,  and  for  injury  to  the 
person  resulting  from  the  negligence  or  incompetency  of 
himself  or  agent. 

A  common  carrier  is  not  liable  for  loss  or  injury  occasioned 
by  the  act  of  God,  or  of  the  public  enemy.  He  may,  by 
contract,  and  within  certain  restrictions,  enlarge  or  limit  his 
liability.  But  a  stipulation  exempting  from  liability  for 
loss  or  injury  due  to  the  negligence  of  himself  or  his  servant, 
has,  in  tliis  country,  generally  been  held  invalid.* 

Where  injury  results  to  a  passenger,  from  the  negligence 
of  a  common  carrier,  he  may,  at  his  election,  sue  upon  the 
contract,  or  in  tort ;  for  there  is  an  implied  contract  on  the 

*  Bennett  v.  Dutton,  10  N.  H.  cases  there  cited.  But  the  agree- 
481  ;  Per  Andrews,  J.,  in  Barney  ment  of  one  who  receives  a  pass  as 
V.  Steamboat  Co.,  67  N.  Y.  301,  302;  a  pure  gratuity,  that  he  assumes 
Ry.  Co.  V.  Acres,  108  Ind.  548.  all  risk  of  injury,   whether  caused 

*  Jencks  v.  Coleman,  2  Sumn.  by  negligence  or  otherwise,  has 
221,  generally  been   held   valid.     Gris- 

8  Day  v.    Owen,    5  Mich,    520  ;  wold   v.   Ry.   Co.,    53  Conn.   371  ; 

Elmore  v.  Sands,  54  N.  Y.  512  ;  Ry.  Quinby  v.  Ry.   Co.,  150  Mass.  365. 

Co.  V,  Skillman,  39  O.  S.  444.  Contra,   Ry.    Co.    v.    McGown,   65 

*  2  Par.  on  Contr.  259,  note  1,  and  Tex.  640. 


§§490-491  APPLICATION  OF  PRINCIPLES.  522 

part  of   the  carrier  to  do  that  with  which  he  is  intrusted, 
with  integrity,  diligence,  and  skill.^ 

II.   ACTIONS   FOR   TORTS. 

490.  Actions  for  Torts. — A  tort,  as  distinguished  from 
breach  of  contract,  is  a  breach  of  duty  fixed  by  law  ;  as  dis- 
tinguished from  crime,  it  is  a  wrong  redressible  by  action  for 
damages,  instead  of  by  public  prosecution  and  punishment.^ 
Torts  are,  generally  speaking,  independent  of  contract,  and 
arise  from  violations  of  rights  in  rem,  as  distinguished 
from  rights  in  personam.  But  if  a  contract  imposes  a  legal 
duty,  as  incident  to  the  contract,  the  neglect  of  such  duty  is 
a  tort  founded  on  contract.  A  tort  arising  out  of  contract 
does  not  arise  from  a  breach  of  its  express  provisions,  but 
from  breach  of  an  implied  duty  arising  out  of,  and  incident 
to,  the  contract.  Thus,  a  professional  man — a  surgeon,  an 
attorney,  an  architect — is  liable,  in  tort,  for  unskillfulness 
or  negligence  in  the  rendition  of  services  under  employment. 
The  contract  for  skilled  services  raises  the  implied  duty,  and 
its  breach  is  a  tort.^ 

To  make  an  act  tortious  it  must  be  legally  wrongful  as  to 
the  party  complaining ;  that  is,  it  must  injure  him  in  some 
recognized  legal  right.  It  frequently  happens  that  the  lawful 
exercise  of  a  legal  right  by  one  person  will  operate  to  the 
detriment  of  another,  without  impinging  upon  his  legal  right, 
and  hence  without  being  actionable.'* 

491.  Replevin  of  Property. — At  common  law,  replevin 
lay  only  where  there  had  been  a  wrongful  taking.^  Under 
the  codes,  the  action  lies  for  wrongful  detention  of  prop- 
erty, whether  the  taking  was  wrongful  or  rightful.  The  gist 
of  the  modern  action  is  said  to  be  the  wrongful  detention. 
But  there  can  not  be  wrongful  detention  from  plaintiff,  unless 

1  Ry.  Co.  V.  People,  31  O.  S.  537  ;        ^  1  ^dd.  on  Torts,  27,  note  ;  Ry. 
2  Gr.Ev.  208.     Cf.  Hall  v.  Cheney,     Co.  v.  Peoples,  31  O.  S.  537. 
36  N.  H.  26  ;  Wiggin  v.  Ry.  Co.,        <Ante,     27.        Cf.      Young    v. 
120  Mass.  201.  Hichens,  6  Q.  B.  606  ;  Town.  Slan- 

'Big.  on  Torts,  3.  der  and  Libel,  91,  and  note. 

6  Ante,  106. 


523  ACTIONS  AND  DEFENSES.  g492 

he  is  entitled  to  possession.  Hence,  the  primary  right  is  the 
right  of  possession,  and  the  defendant's  delict  is  the  wrongful 
detention  ;  and  the  complaint  should  disclose  these  constituent 
elements.  But  the  right  of  possession  is  a  resultant  right, 
arising  by  operation  of  law,  from  other  facts.  One  may  be 
entitled  to  possession  as  owner,  as  bailee,  as  mortgagee,  and 
these  operative  facts  should  be  stated.  An  allegation  that 
the  plaintiff  is  entitled  to  the  possession  is  a  conclusion  of 
law,  and  is  not  sufficient.^ 

The  complaint  should  contain  a  description  of  the  property 
sufficient  for  identification.^ 

Where  the  original  jurisdiction  of  the  court  depends  upon 
the  value  of  the  property  sought  to  be  recovered,  the  question 
has  arisen  whether  this  means  an  ascertained  value,  or  an 
alleged  value  ;  and  it  may  be  said  that  the  general  rule, 
resting  upon  both  precedent  and  reason,  makes  the  alleged 
value  the  test.  Where  value  is  made  a  jurisdictional  fact,  it 
should,  like  all  other  jurisdictional  facts,  be  made  to  appear 
in  limine  ;  and  where  an  allegation  of  value  is  a  jurisdictional 
requisite,  it  is  material  only  as  to  jurisdiction,  and  is  not, 
quoad  hoc,  issuable  ;  ^  though  so  far  as  it  affects  the  recovery 
of  damages  in  the  action,  the  value  of  the  property  is  prop- 
erly the  subject  of  proof.* 

492.  Replevin  of  Property,  Continued. — Where  the 
defendant  came  rightfully  into  possession  of  the  property, 
the  action  is  usually  called  replevin  in  the  detinet,  and  the 
complaint  must  allege  demand  and  refusal ;  otherwise  there 
is  no  wrongful  detention,  and  hence  no  remedial  right.^     But 

1  Pattison  v.  Adams,  7  Hill,  126  ;  377  ;  Reilly  v.  Ringland,  39  Iowa, 

S.  c.  42Am.  Dec.  59.     Gf.  Robin-  106;  Woodruff  v.   Cook,  25    Barb, 

son  V.  Fitch,  26  O.  S.  659  ;  Garner  505.     Cf.     Tulley  v.  Harloe,  35  Cal. 

V.  McCullough,  48  Mo.  318.  306  ;  Bales  v.  Scott,  26  Ind.  202. 

2Hames  v.    Robinson,    44    Ark.  ^Ante,    331,    395;    Campbell    v. 

308 ;  Pierce  v.  Langdon,  2  Idaho,  Jones,    38    Cal.    507  ;    Stratton   v. 

878.  Allen,  7  Minn.  409  ;  Conner  v.  Com- 

^Brunaugh  v.  Worley,   6  O.   S.  stock,    17    Ind.    90  ;    Newman    v. 

597  ;  Chilson  v.  Jennison,  60  Mich.  Jenne,   47    Me.    520  ;    Gilchrist  v. 

235  ;  Addison  v.  Burt,  74  Mich.  730.  Moore,    7   Iowa,  9.     Cf.   Smith  v. 

Cf.  Wells  on  Repl.  680.  McLean,  24  Iowa,   322  ;  Stone  v. 

*Ry.  Co.  ^.  Packet  Co.,  38  Iowa,  Bird.  16  Kan.  488  ;  Prime  v.  Cobb, 


§  493  APPLICATION  OF  PRINCIPLES.  524 

where   the  action  is   to  recover  property   tortiously  taken, 
called  replevin  in  the  cepit^  no  demand  is  necessary. 

COMPLAINT   IN  REPLEVIN. 

Plaintiff  is  the  owner  of  one  Singer  Sewing  Machine,  No.  ,  of 

the  value  of  $  ,  and  as  such  owner  is  entitled  to  the  immediate 

possession  thereof.     Defendant  wrongfully  detains  said  property  from 
plaintiff,  and  has  so  detained  it  since  ,  to  the  damage  of  plaintiff 

I  .     Wherefore,  plaintiff  prays  judgment  against  defendant  for  the 

recovery  of  said  property,  and  for  dollars,  his  damages  so  as  afore- 

said sustained. 

A  general  denial  puts  in  issue  all  the  essential  averments 
of  the  complaint,  puts  the  burden  of  proving  them  upon  the 
plaintiff,  and  admits  evidence  by  the  defendant  (1)  to  con- 
trovert the  plaintiff's  evidence,  (2)  to  disprove  his  allegations, 
and  (3)  to  prove  other  and  inconsistent  facts.  Under  such 
denial,  the  defendant  may  prove  his  right  to  possession, ^  or 
that  he  as  an  officer  levied  on  the  property  at  the  suit  of  a 
creditor  of  him  from  whom  the  plaintiff  obtained  it  in  fraud 
of  creditors,^  or  he  may  show  title  in  a  stranger.^ 

In  a  case  where  replevin  is  the  proper  remedy,  if  the  spe- 
cific property  can  not  be  recovered,  the  action  may  proceed  for 
the  recovery  of  damage,  which  would  be  the  value  of  the 
property,  plus  the  value  of  its  use  while  wrongfully  detained.* 

493.  Libel  and  Slander. — Slander  is  oral  defamation  ; 
libel  is  defamation  by  writing,  printing,  or  representation. 
The  primary  right  in  such  cases  is  a  right  in  rem — the  right 
to  security  of  reputation  or,  good  name  from  the  arts  of  de- 
traction and  slander  ;  ^  and  the  corresponding  duty  is,  to  for- 
bear to  publish  defamation  of  another. 

63  Me.   200  ;   Homan  v.   Laboo,  1  Anderson  v.   Tyson,  14  Miss.  244 ; 

Neb.  210  ;  Millspaugh  v.  Mitchell,  Kehoe  v.  Rounds,  69  111.  351  ;  Bales 

8  Barb.  333.  v.    Scott,   26   Ind.    202 ;  Jetton  v. 

1  Lindsay  v.  Wyatt,  1  Idaho,  738.  Smead,  29  Ark.  372,     Cf.  Berthold 

2  Bailey  v.  Swain,  45  O.  S.  657;  v.  Fox,  21  Minn.  51.  The  statutory 
Holmberg  v.  Dean,  31  Kan.  73  ;  requirement  of  affidavit  before  the 
Snook  v.  Davis,  6  Mich.  156.  issuing  of  process,  and  of  an  under- 

8  Branch  v.  Wiseman,  51  Ind.  1 ;  taking  before  delivery  of  the  prop- 
Griffin  V.  Ry.  Co.,  101  N.  Y.  348.  erty,  are  matters  of  practice,  and 

*  Fitzhugh  V.    Wiman,   9  N.    Y.  do  not  pertain  to  pleading. 
559 ;  Rawark  v.  Lee,  14  Ark.  425  ;       6  Ante,  19,  394 ;  1  BI.  Com.  134. 


525  ACTIONS  AND  DEFENSES.  §  493 

Actionable  words  are,  (1)  those  actionable  per  sg,  that  is, 
witliout  allegation  or  proof  of  actual  damages,  and  (2)  tliose 
actionable  only  in  respect  of  some  actual  consequential  damage. 
As  a  general  rule,  where  the  immediate  and  natural  tendency 
of  the  words  is  to  cause  damage,  they  are  actionable  per  se. 
Such  are,  words  imputing  the  commission  of  an  indictable 
crime,  such  as  murder,  forgery,  perjury,  larceny  ;  charging 
one  with  having  a  contagious  or  infectious  disease  of  a  dis- 
graceful kind,  such  as  leprosy,  or  a  venereal  disease ;  charg- 
ing one  holding  an  office  of  profit,  with  unfitness,  either  as  to 
morals,  or  as  to  qualifications ;  or  charging  want  of  capacity 
or  integrity  in  the  conduct  of  a  profession  or  business. 

To  render  words  actionable ^gr  se,  on  the  ground  that  they 
impute  criminality,  they  must  charge  an  indictable  offense, 
and  one  that  involves  a  high  degree  of  moral  turpitude, 
or  that  would  subject  the  offender  to  infamous  punishment. 
Charging  one  to  be  a  deserter  is  not  actionable  jogr  se,  because 
the  offense  charged  is  cognizable  only  by  a  court-martial,  and 
is  not  indictable.^  And  charges  of  assault  and  battery,  of 
fighting,  of  refusing  to  aid  an  officer,  of  keeping  a  ferry  with- 
out license,  and  the  like,  are  not  actionable  per  se  ;  for  while 
such  offenses  are  indictable,  they  do  not  imply  such  degree  of 
moral  depravity  as  will  render  them  actionable  per  se.^ 

Charging  one  with  having  a  loathsome  disease  is  actionable 
per  se,  because  the  natural  and  inevitable  tendency  would  be 
to  exclude  him  from  the  society,  the  favor  and  countenance, 
of  other  persons.  Hence,  such  charges  in  the  past  tense — as, 
to  say   of  a  woman,  "  She  has  had  the  pox  " — are  not  action- 


er  se 


3 


able  p 

An  imputation  of  corruption  in  office,  to  be  actionable  per 
se,  must  relate  to  the  person's  official  occupation,^  and  he 
must  be  in  the  exercise  of  the  duties  of  the  office  at  the  time 
of  the  publication  of  the  defamatory  words ;  ^    for  otherwise, 

^  Hollingsworth  V.  Shaw,  19  O,  S.  *  Van  Tassel  v.  Capron,  1  Denio, 

430  ;  s.  C.  2  Am.  Rep.  411.  250  ;  Ireland  v.  McGarvish,  1  Sandf. 

"Per     BowEN,    J.,    in     Dial    v.  155  ;  Kinney  v.  Nash,  3  Comst.  177. 

Holter,  6  O.  S.  228,  242.  6  Bellamy  v.  Buroh,  16  M.  &  W. 

^Carslake  v,  Mapledoram,   2  T,  590;  Gallway  v,  Marshall,  9  Ex. 

R.  473.  294. 


g494  APPLICATION  OF  PRINCIPLES.  526 

the  publication  of  the  words  could  not  tend  to  injure  him  in 
his  official  occupation.  And  the  same  restrictions  apply 
to  words  impugning  one's  capacity  or  integrity  in  the 
conduct  of  a  business  or  profession.  To  falsely  charge 
a  physician  with  incontinence,  not  connected  with  his 
professional  conduct,  is  not  action  able  per  se ;  ^  but  to 
say  of  a  physician's  treatment  of  a  particular  case,  "  He 
killed  the  child  by  giving  it  too  much  calomel,"  is  action- 
able.2 

494.  Libel  and  Slander,  Continued. — Defamatory  words 
not  actionable  per  se  may  be  actionable,  if  special  damages 
result  as  the  natural  and  direct,  or  reasonable  consequence 
of  the  publication  of  the  words.^  And  in  such  case,  the 
special  damages  must  be  alleged  and  proved ;  and  where  it 
is  not  impracticable,  the  complaint  must  set  forth  in  what  way 
the  damages  resulted  from  the  speaking  of  the  words.  It  is 
not  sufficient  to  allege  simply  that  the  plaintiff  has  sustained 
special  damages.* 

Malice,  in  law  or  in  fact,  is  an  essential  ingredient ;  but 
whether*  malice  is  to  be  alleged  in  the  complaint,  is  a  ques- 
tion upon  which  the  authorities  are  not  agreed.  The  gen- 
eral rule,  perhaps,  is,  that  the  allegation  of  falsity  raises  an 
implication  of  malice,  and  dispenses  with  the  allegation. 
This  would  doubtless  be  true  where  the  words  spoken  are 
actionable  per  se  ;  though  the  authorities  do  not  seem  to 
make  this  distinction.^  And  the  charge  must  be  false,  and 
must  be  alleged  to  be  false.^  The  truth  of  the  charge  com- 
plained of  is  a  good  defense,  even  if  the  words  were  spoken 


'  Ayre  v.  Craven,  2  Ad.  &  E.   7  ;  597 ;  Johnson  v.  Robertson,  8  Por- 

Gallway  v.  Marshall,  9  Ex.  294.  ter,  486  ;  Hallock  v.  Miller,  2  Barb. 

a  Johnson  v.  Robertson,  8  Port.  630;  Cook  v.  Cook,  100  Mass.  194; 

486  ;  Tutty  v.  Alewin,  11  Mod.  221.  Pollard  v.  Lyon,  91  U.  S.  225  ;  Bas- 

sVicars  V.  Wilcocks,  8  East.  1  ;  sell    v.    Elmore,    48    N.    Y.    561; 

Wilson  V.   Runyon,  Wright,  651 ;  Strauss  v.  Meyer,  48  111.  385.     Cf. 

Moody  V.   Baker,   5  Cowen,   351  ;  Martin  v.  Henrickson,  2  Ld.  Raym. 

Terwilliger  v.  Wands,  17  N.  Y.  54  ;  1007. 

Knight  V.  Gibbs,  1  Ad.  «Sk  El.  43  ;  «  Ante,  330,  and  note. 

Birch  V.  Benton,  26  Mo.  153.  'Ante,  330. 

*  Wetherell  v.  Clerkson,  12  Mod. 


527  ACTIONS  AND  DEFENSES.  g  495 

maliciously .1  This  is  said  to  be  on  the  theory  that  a  pei"son 
has  no  legal  right  to  a  false  reputation,^ 

Some  statements  of  matter  that  would  otherwise  be  action- 
able defamation,  are  privileged  on  account  of  their  nature 
and  of  the  occasion  on  which  they  are  made.  Words  spoken 
in  legislative  proceedings  ;  words  spoken  or  written  in  judi- 
cial proceedings,  if  relevant  and  pertinent  to  the  matter  under 
consideiation,  and  if  the  court  has,  or  may  reasonably  be 
supposed  to  have,  jurisdiction;  information  given  to  an 
officer,  to  procure  legal  protection  or  redi'ess  ;  words  spoken 
at  a  public  meeting,  on  the  question  under  consideration,  if 
believed  to  be  true,  and  if  free  from  malice  ;  bona  fide  answers 
to  confidential  inquiries,  if  the  inquirer  has  an  interest  in  the 
subject  of  inquiry  ;  and  proceedings  before  a  church  for  the 
discipline  of  members,  if  pertinent  to  the  matter  under  con- 
sideration, are  thus  privileged. 

495.  Libel  and  Slander,  Continued. — As  the  primary 
right  in  such  cases — the  right  to  the  uninterrupted  enjoy- 
ment of  one's  reputation — is  one  available  alike  to  all  persons, 
the  complaint  need  not  state  the  facts  from  which  the  pri- 
mary right  and  duty  arise  ;^  and  the  usual  averment,  that 
plaintiff,  at  the  time  of  the  acts  complained  of,  sustained  a 
good  name  and  reputation,  is  unnecessary,  for  the  law  pre- 
sumes the  plaintiff's  reputation  to  be  good.* 

The  words  actually  used,  and  not  merely  their  import, 
should  be  set  out;  though  obscene  and  indecent  language 
may  sometimes  be  omitted,  and  a  description  thereof  be  in- 
serted. Foreign  words  should  be  set  out,  with  an  English 
translation ;  and  it  must  be  alleged  that  they  were  under- 
stood by  those  who  heard  them.^     And  it  must  appear  that 


1  Van  Aukin  v.  Westfall,  14  in  it  was  held  to  be  error  to  allow 
Johns.  233  ;  Foss  v.  Hildreth,  10  the  plaintiff  to  sustain  liis  needless 
Allen,  76  ;  King  v.  Root,  4  Wend,  averment  of  good  character. 
113.  Contra,  3  Suth.  Dam.  655  ;  Shroyer 

2  Bigelow  on  Torts,  50  ;  Ante,  330,  v.  mUer,  3  W.  Va.  158. 

in  nota.  s  zeig  v.   Ort,  3  Pin.  (AVis.)  30  : 

'Ante,  183.  Kerschbaugher  v.  Slusser,  12  Ind. 

*  1  Hilliard  on  Torts,  63  ;  Blakes-  453  ;  Wormouth  v.  Crainer,  3  Wend. 

lee  V.  Hughes,  50  O.  S.  490,  wliere-  394. 


g  496  APPLICATION  OF  PRINCIPLES.  528 

slanderous  words  spoken  were  heard  by  others,  that  they 
were  false,  and  that  they  were  spoken  maliciously.^  Some- 
times the  colloquium  must  be  set  out,  or  innuendo  resorted 
to,  in  order  to  show  the  understood  meaning  of  the  words 
and  that  they  referred  to  the  plaintiff.  In  some  states  it  is 
provided  by  statute  that  it  shall  be  sufficient  to  state  simply 
that  the  defamatory  matter  was  published  or  spoken  of  the 
plaintiff.  The  same  words,  spoken  at  different  times,  consti- 
tute several  rights  of  action  ;  but  distinct  defamatory  charges, 
spoken  at  the  same  time,  have  been  held  to  constitute  but 
one  right  of  action. ^ 

COMPLAINT  FOR  SLANDER. 

On  the  day  of  ,  the  defendant,  in  the  presence  and  hear- 

ing of  divers  persons,  maliciously  spoke  of  and  concerning  this  plaintiff, 
these  false  and  malicious  words,  to  wit :  [Here  set  out  the  words.]  To 
the  damage  of  plaintiff  in  the  sum  of  dollars,  for  which  he  prays 

judgment  against  the  defendant. 

COMPLAINT  FOR  LIBEL. 

(ILLUSTRATING  USE  OF  INNUENDO.) 

The  defendant,  with  malicious  intent  to  injure  plaintiff,  on  the 
day  of  ,  wrote  and  published,  and  caused  to  be  written  and  pub- 

lished, of  and  concerning  plaintiff,  in  a  certain  newspaper  called 
"  ,"  printed  and  published  at  ,  and  having  a  large  circula- 

tion in  said  county  of  ,  wherein  plaintiff  then  and  theretofore  re- 

sided, a  certain  false  and  malicious  libel,  in  the  words  and  figures  fol- 
lowing :  "We  [meaning  the  residents  of  said  county]  have  in  our 
county  [meaning  said  county  of  ]  one  A.  B..  [meaning  this  plaint- 

iff] who  is  "  etc.;  [copying  in  full  the  libelous  matter.]  To  the  damage 
of  plaintiff  dollars,  for  which  he  prays  judgment  against  defendant. 

496.  Libel  and  Slander,  Continued. — The  answer  may 
be  a  denial,  or  a  justification.  If  the  defendant  justify,  he 
must  allege  the  particulars  showing  the  truth  of  the  charge  ;^ 
for  the  truth  of  the  charge  can  not  be  proved  under  a  denial.* 
And  the  justification  must  be  as  broad  as  the  charge  com- 

}  Ante,  394,  and  cases  cited.  Y.  547  ;  Tilson  v,   Clark,  45  Barb. 

*Ante,  442,  and  cases  cited.  178.     Cf.  Boaz  v.  Fate,  43  Ind.  60. 

«  Robinson  v.  Hatch,  55  How.  Pr.  ■»  Duval  v.  Davey,  32  O.  S.  604; 

55 ;    Sunman  v.   Brewin,   52  Ind.  Boaz  v.  Fate,  48  Ind.  60 ;  Manning 

140 ;  Watchter  v.  Quenzer,  29  N.  v.  Clement,  7  Bing.  367  ;  Brickett 


529  ACTIONS  AND  DEFENSES.  §497 

plained  of.^  Where  the  charge  is  the  commission  of  a  crime, 
an  answer  in  justification  must  state  the  facts  that  constitute 
such  crime.2  But  where  the  charge  complained  of  is  s])ecific» 
such  as  the  doing  of  a  particular  act,  it  has  been  held  suffi- 
cient to  aver  generally  the  truth  of  tlie  charge.^ 

It  seems  that  a  general  denial  and  a  justification  are  not 
inconsistent,  and  that  they  may  be  joined,  in  separate  de- 
fenses, in  the  same  answer.* 

497.  Malicious  Prosecution. — A  groundless  prosecution, 
begun  maliciously  and  without  probable  cause,  is  a  wrong- 
ful invasion  of  the  right  of  personal  security,  and  may  be 
redressed  by  an  action  for  damages.^  The  right  of  personal 
security  does  not  exempt  persons  from  groundless  prosecu- 
tions ;  on  the  contrary,  an  innocent  man  may  rightly  be  sub- 
jected to  a  prosecution,  if  there  is  probable  cause  to  believe 
him  guilty.  In  other  words,  the  right  of  personal  security, 
in  its  totality,  is  subject  to  the  right  of  any  one  to  institute 
a  prosecution  grounded  upon  probable  cause.^ 

The  action  for  malicious  prosecution  is  given  for  the  in- 
stitution of  a  false  charge,  maliciously,  and  without  probable 
cause.  In  order  to  show  that  the  charge  was  false,  the  prose- 
cution complained  of  must  be  ended,  and  must  have  ter- 
minated favorably  to  the  person  prosecuted.  The  want  of 
probable  cause  is  the  absence  of  facts  and  circumstances  that 
•would  induce  a  man  of  ordinary  intelligence  and  caution  to 
believe  the  charge  to  be  true.  The  malice  that  is  made  an 
element  of  this  action  is  malice  in  fact,  as  distinguished 
from  malice  in  law.^ 

V.  Davis,  31  Pick.  404  ;  Kay  v.  Fred-  Cf.  Thompson  v.  Barkley ,  27  Pa. 

rigal,  3  Pa,  St.  221  ;  Jarnigan  v.  St.  263. 

Fleming,  43  Miss.  710.  3  VanWyok  v.  Guthrie,  4  Duer, 

1  Whittemore  v.  Weiss,  33  Mich.  268. 

348;  Palmer  v.   Smith,   21   Minn.  « Weston  v.  Lumley ,  33  Ind.  486  ; 

419  ;  Downey  V.  Dillon,  52  Ind.  442 ;  Harper  v.  Harper,   10  Bush,   447; 

Ante,  75 ;    Davis  v.   Matthews,    2  Horton   v.   Banner,   6  Bush,   596 ; 

Ohio,  257 ;   Steele  v.   Phillips,   10  Murphy  v.  Carter,  1  Utah,  17. 

Humph.  461.  ^steph.  PI.  126,  in  nota. 

aSpooner  v.  Keeler,  51  N.  Y.  527  ;  «  Ante,  13. 

Downy  V.  Dillon,  52  Ind.  442  ;  Bill-  '  Tlie  prosecution  of  a  groundless 

Logs  v.  Waller,  28  How.  Pr.   97.  civil  action,  with  malice,  and  with- 
34 


i^498 


APPLICATION  OF  PRINCIPLES. 


530 


498.  Malicious  Prosecution,  Continued. — As  the  pri- 
mary right  invaded  is  one  belonging,  alilce  to  all  persons,* 
only  the  facts  constituting  the  delict  should  be  stated  in  the 
complaint ;  to  wit,  the  institution  and  conduct  of  the  prose- 
cution, its  termination  in  favor  of  the  plaintiff,  the  want  of 
probable  cause,  and  the  existence  of  malice. ^  In  alleging 
want  of  probable  cause,  it  is  sufficient  to  aver  simply  that 
the  prosecution  was  without  reasonable  or  probable  cause. 
This  may  be  said  to  be  the  statement  of  a  conclusion,  rather 
than  the  facts  to  warrant  it.  But  the  plaintiff  can  not  be 
more  specific ;  and  besides,  it  is  not  the  statement  of  a  con- 
clusion. It  is  not  the  want  of  probable  cause  that  the  plaint- 
iff complains  of,  but  being  subjected  to  a  groundless  prose- 
cution. This  is  the  culpatory  fact ;  and  the  malice  and  the 
want  of  probable  cause  are  simply  characterizations  of  this 
fact,  to  make  it  culpatory.^  The  want  of  probable  cause  is 
a  negation,  not  based  on  facts  but  upon  the  absence  of  facts.* 


out  probable  cause,  does  not,  gen- 
erally, constitute  a  ground  of  ac- 
tion for  malicious  prosecution,  un- 
less there  has  been  arrest  of  the 
person,  seizure  of  property,  or  some 
special  injury.  Tomlinson  v.  War- 
ner, 9  Ohio,  103  ;  Bitz  v.  Meyer,  40 
N.  J.  L.  253 ;  Eberly  v.  Rupp.  90 
Pa.  St.  259 ;  Woods  v.  Finnell,  13 
Bush,  628  ;  Marbourg  v.  Smith,  11 
Kan,  554  ;  Clossen  v.  Staples,  1  Am. 
Rep.  316.  Cf.  Willardv.  Holmes, 
142  N.  Y.  492  ;  Ferguson  v.  Arnow, 
142  N.  Y.  580. 

1  Ante,  183. 

2  Where  probable  cause  is  found 
to  exist,  no  amount  of  malice  wiU 
entitle  the  plaintiff  to  recover. 
Lacey  v.  Porter,  108  Cal.  597. 

8  It  has  been  held  that  the  insti- 
tution of  a  criminal  prosecution  for 
the  sole  purpose  of  collecting  a  debt 
shows  both  malice  and  want  of  pro- 
bable cause.  Leuck  v.  Heisler,  87 
Wis.  644.  But  the  prosecution  so 
instituted  must  have  terminated  in 


plaintiff's  favor,  to  make  it  a  ground 
of  action. 

*  Lavender  v.  Hudgens,  32  Ark. 
763.  There  are  cases  holding  that 
the  complaint  should  set  out  facts 
showing  the  absence  of  probable 
cause  ;  but  they  are  mostly  case.s 
of  but  little  weight.  Pangburn  v, 
Bull,  1  Wend.  345,  is  frequently 
cited  as  an  authority  for  this  re- 
quirement. But  no  qviestion  of 
pleading  was  there  involved.  The 
trial  court  had  submitted  both  the 
law  and  the  facts  to  the  jury  ;  and 
the  reviewing  court  held,  that 
w^hile  want  of  probable  cause  is  a 
mixed  question  of  law  and  fact,  yet, 
inasmuch  as  the  jury  made  no  mis- 
take as  to  the  law,  there  was  no 
available  error.  In  Reynolds  v. 
Kennedy,  1  Wilson,  232  (1784),  the 
Court  of  King's  Bench  held  that  it 
was  not  enough  for  the  plaintiff  to 
say  simply  that  the  charge  was  pre- 
ferred sine  causa.  But  the  case 
was  in  fact  decided  on  the  groimd 


531  ACTIONS  AND  DEFENSES.  §  48& 


COMPLAINT  FOR  MALICIOUS  PROSECUTION. 

On  the  day  of  ,  the  defendant,  maliciously  and  without 

probable  cause,  induced  and  procured  the  grand  jurors  of  the  Court  of 
Common  Pleas  of  County,  Ohio,  upon  information  and  testimony 

by  him  for  that  purjx)se  furnislied  to  tiieui,  to  find  and  present  to  the 
said  court,  at  its  term,  an  indictment  against  plaintiff,  charging 

him  with  [Here  state  the  offense  charged.]  And  defendant,  at  the  said 
term  of  said  court,  maUciously,  and  without  probable  cause  therefor, 
procured  said  indictment  to  be  prosecuted,  and  the  plaintiff  to  be  tried 
on  the  said  charge. 

Upon  the  said  trial,  to  wit,  on  the  day  of  ,  plaintiff  was 

duly  acquitted  of  said  charge,  and  the  said  prosecution  was  then  and 
there  terminated. 

By  reason  of  said  prosecution,  plaintiff  has  been  damaged  in  the  sum 
of  $  ,  expended  for  counsel  to  defend  him  against  said  charge,  and 

he  has  been  otherwise  injured  in  business  and  in  his  reputation,  in  the 
sum  of  $ 

Wherefore  plaintiff  prays  judgment  against  defendant  for  the  sura 
of  dollars. 

499.  Malicious  Prosecution,  Continued. — Some  author- 
ities hold  that  the  plaintiff's  averment  of  want  of  probable 
cause  is  traversed  by  a  denial ;  ^  this  is  on  the  ground  that 
the  defendant  may,  under  a  denial,  offer  evidence  to  disprove 
any  fact  which  the  plaintiff  must,  in  the  first  instance,  prove 
to  maintain  his  action.  Other  authorities  hold  that  such 
averment  is  not  traversed  by  a  mere  denial,  and  that  the  facts 
showing  probable  cause  should  be  set  out.^ 

Upon  principle,  the  plaintiff's  negative  averment  of  want 

that    the    declaration  showed    no  sive  to  the  plaintiff's  evidence  to 

malice,  and  not  on  the  insufficiency  show    want    of    probable    cause, 

of  the  other  averment.  Levy  v.  Brannan,  39  Cal.  485.     This 

^  Bliss  PI.  328 ;  Pom.  Rem.  680 ;  is  correct,  if  we  assume  that  the 

Benedict  v.  Seymour,  6  How.  Pr.  defendant's  denial  of  the  plaintiff's 

298 ;  Rost  v.  Harris,    12  Abb.  Pr.  negation  makes  an  issue  for  the  ad- 

446  ;  Radde  v.  Ruckgaber,  3  Duer,  mission  of  any  evidence.     White  v. 

684 ;  Simpson  V.  McArthur,  16  Abb.  Tucker,  16  O.  S.  "468. 

Pr.  302  (n.) ;  Levy  v.  Brannan,  39  2  Brown   v.    Connelly,  5  Blackf. 

Cal.  485  ;  Trogden  v.  Deckard,  45  390  ;  Blachford  v.  Dod,  2  B.  &  Ad. 

Ind.  572.     Proof  that  the  defendant  179  ;  Morris  v.  Corson,  7  Cow.  281 ; 

acted  under  the  advice  of  counsel,  Hunter  v.    Mathis,   40  Ind.    356 ; 

after  full  disclosure,  has  been  ad-  Mure  v.  Kaye,  4  Taunt.  34 ;  Scheer 

mitted    under    a    denial,    on    the  v.  Keown,  34  Wis.  349. 
ground  that  it  is  directly  respon- 


g  600  APPLICATION  OF  PRINCIPLES.  532 

of  probable  cause  should  be  traversed  by  an  affirmative  state- 
ment that  the  defendant  had  reasonable  ground  for  the  prose- 
cution. A  traverse  by  denial  would  be  the  use  of  two  nega- 
tives, and  is  forbidden,  because  argumentative.^  A  state- 
ment of  facts  showing  probable  cause  would  be  faulty, 
because  it  would  not  give  color.^  The  defendant  does  not 
confess  and  avoid  the  plaintiff's  allegation,  but  controverts 
it.  His  contention  must  therefore  be  by  a  traverse  of  the 
plaintiff's  allegation.  New  facts  alleged  to  support  such 
contention  would  be  facts  inconsistent  with  the  plaintiff's 
averment ;  whereas,  facts  proper  to  be  alleged  as  a  defense 
of  new  matter  must  be  consistent  with  the  allegations  of  the 
complaint.^  The  facts  that  would  show  probable  cause  for 
instituting  the  prosecution  are  evidential  facts,  admissible 
under  an  affirmative  traverse  of  the  plaintiff's  negative  aver- 
ment. 

The  defendant  may  allege,  in  mitigation,  facts  tending  to 
show  that  what  he  did  was  done  without  malice.* 

ANSWER  IN  MALICIOUS  PROSECUTION. 

First  Defense. 

When  the  defendant  did  the  several  things  stated  in  the  complaint, 
he  had  reasonable  and  probable  cause  to  believe,  and  did  believe,  that 
the  plaintiff  was  guilty  of  the  said  offense  so  charged. 

Second  Defense. 

Defendant  admits  that  he  did  the  several  acts  in  the  complaint  alleged 
to  have  been  done  by  him,  and  he  denies  all  other  facts  therein  alleged. 

500.  Negligence  as  a  Ground  of  Action  and  of  De- 
fense.— Negligence  may  be  defined  as  the  conjunction  of 
inadvertence  and  of  some  act  or  omission  resulting  in  injury. 
If  one  adverts  not  to  a  given  act,  and  by  reason  thereof  omits 
the  act ;  or,  if  he  adverts  not  to  the  probable  consequences 
of  an  act,  and  by  reason  thereof  does  the  act ;  or, 
if  he  adverts  both  to  the  act  and  to  its  probable  con- 
sequences, but  in  a  manner  so  careless  as  to  misconceive 
the  act  or  its  probable  consequences,  and  by  reason  of  such 

1  Ante,  360.  *  Bradner  v.  Faulkner,  93  N.  Y. 

3  Ante,  240.  515. 

•Ante,  236,  380. 


533  ACTIONS  AWD  DEFENSES.  §  500 

inattention,  does,  or  omits,  the  act ;  such  act  or  omission, 
conjoined  with  the  inadvertence,  if  injury  ensue,  constitutes 
negligence.^  And  if  the  injury  results  to  one  entitled  to  the 
exercise  of  greater  care  by  the  other,  the  negligence  is 
actionable.^ 

From  the  foregoing  analysis  it  will  appear  that  the  term 
nejrlisrence  denotes  the  inadvertence  from  which  the  act  or 
omission  ensues;  and  only  connotes  the  act  or  omission; 
and  that  while  the  term  imports  the  want  of  requisite 
care,  it  does  not  state  or  import  any  act  or  omission. 
It  is  plain,  therefore,  that  to  allege  negligence,  the  act 
or  omission  must  be  stated,  and  it  must  be  alleged  that  it 
was  negligently  done  or  omitted;^  and  to  make  it  culpable 
negligence,  it  must  appear  that  legal  injury  resulted.*  It 
may  therefore  be  stated,  as  a  general  proposition,  that  to 
allege  negligence  as  a  ground  of  recovery,  facts  should  be 
stated  showing  a  relation  between  plaintiff  and  defendant 
that  entitled  the  former  to  the  exercise  of  care  by  the  latter ; 
the  act  or  omission  complained  of  should  be  stated,  and  it 
should  be  characterized  as  negligent ;  and  the  resulting  injury 
should  be  alleged.  These  are,  ordinarily,  the  operative  facts 
showing  a  right  of  action  for  negligence.^ 

To  allege  simply  that  defendant  ran  his  wagon  into  plaint- 
iff's wagon,  does  not  state  a  wrongful  act;  the  act  should 
be  characterized  as  negligent.  And  to  allege  simply  that 
defendant  negligently  injured  plaintiff  is  not  sufficient,  for 
it  states  neither  an  act  nor  an  omission.  Some  specific  act 
or  omission  should  be  stated,  and  it  should  be  alleged  that  it 
was  negligently  done  or  omitted.^  It  is  neither  necessary 
nor  proper  to  state  all  the  facts  that  show  the  act  or  omis- 
sion complained  of  to  be  negligent.'^ 

1 1  Aus.  Jur.  667,  668.  ^  Faris  v.  Hoberg,  134  Ind.  269. 

3  Sweeny  v.   Ry.  Co.,  10  AUen,        «  Ry.  Co.  v.  Harwood,  90  111.  425  ; 

368,  372.  Ry.  Co.  v.  Chester,  57  Ind.  297. 

3 Crane  v.  Ry.  Co.,  87  Mo.  588;        '  Davis  v.  Guarnieri,  45  O.  S.  471, 

Ry.   Co.    V.  Dunlap,  29  Ind.  426  ;  485,  and  cases  cited ;  McCauley  v. 

Ry.  Co.  V.  Harwood,  90  111.  425.  Davidson,  10  Minn.  418  ;  Grinde  v. 

<Per  COOLEY,   J.,  in  Macomber  Ry.   Co.,  42  Iowa,  376;  Commrs., 

V.  Nichols,  34  Mich.  212.  etc.  v.  Huffman,  134  Ind.  1 ;  Ry. 


g  501  APPLICATION  OF  PRINCIPLES.  53J, 

501.  Negligence,  Continued. — Negligence  is  the  want 
of  ordinary  care — that  care  which  persons  of  common  sense 
and  common  prudence  ordinarily  exercise  in  like  employ- 
ments, under  like  circumstances.  Ordinary  care  has  an 
absolute  Ti^ndo.  relative  signification.  The  s^anc?arc?  is  absolute, 
— such  care  as  prudent  persons  are  accustomed  to  exercise  in 
sucli  case ;  the  degree  is  relative, — depending  upon  the  cir- 
cumstances of  the  particular  case.  Circumstances  of  peculiar 
peril  require  a  greater  amount  of  care.  The  degree  of  care 
is  increased,  but  the  standard  is  the  same ;  it  is  ordinary 
care,  under  the  particular  circumstances.  And  whether  such 
care  has  been  exercised  or  omitted  in  a  given  case  is  to  be 
determined,  not  from  the  absolute  requirements  of  the  occa- 
sion, but  from  all  the  circumstances,  viewed  in  the  light  of 
ordinary  prudence  ;  ^  for  the  full  orbit  of  the  primary  right 
in  such  cases  is,  such  security  as  the  exercise  of  reasonable 
care  by  the  defendant  would  afford.  Ordinarily,  therefore, 
the  question  whether  there  is  negligence  in  a  given  exigency 
is  compounded  of  law  and  fact,  and  is  for  the  jury,  under 
instructions.^  This  is  always  so,  where  the  facts  established 
or  conceded  are  such  that  different  conclusions  might  fairly 
be  drawn  therefrom.^  But  in  some  instances  the  law  has 
fixed  the  act  or  the  omission  that  will  constitute  negligence. 
In  such  cases,  since  the  precise  measure  of  duty  is  determin- 
ate,— the  same  under  all  circumstances, — the  court  may 
pronounce  a  given  act  or  omission  to  be  negligence  per  se.* 
In  such  cases,  since  the  law  characterizes  the  particular  act 
or  omission,  it  is  not  necessary  to  characterize  it  by  allegation. 
In  the  nature  of  things,  the  tendency  is,  both  by  legislation 
and  by  adjudication,  to  make  the  law  more  and  more  specific, 

Co.  V.  Berkey,   136  Ind.  181.     Cf.  378  ;  Shear.  &  Redf.  Neg.  10,  note 

House    V.    Meyer,    100    Cal.    592;  2. 

Haynes  v.  Trenton,  123  Mo.  326;  « Shear.  &  Redf.  Neg.  10,  note  2  ; 

where  it  is  held  that  a  general  alle-  Ry.  Co.  v.  Klauber,  9  111.  App.  613. 

gation  of  negligence  is  sufficient  *Ry.  Co.  v.  Grames,  136  Ind.  39; 

as  against  an  objection  first  raised  Salladay  v.  Dodgeville,  85  Wis.  318. 

upon  appeal.  ■'Dyer  v.  Ry.    Co.,   34  Mo.    127; 

J  Ry.   Co.   V.   Brigham,  29  O.  S.  Ry.  Co.  v.  Crawford,  24  O.  S.  631 ; 

Burdick  v.  Worrall,  4  Barb.  596. 


535  ACTIONS  AND  DEFENSES.  §  502 

and  to  increase  the  instances  in  which  the  duty  is  determin- 
ate.^ But  notwithstanding  this  tendency,  the  task  of  dis- 
tinguishing the  hiw  and  the  facts  in  negligence  is,  and  must 
remain,  one  of  the  greatest  difficulty.  The  old  lawyers 
called  it  a  "  perylous  chose."  ^ 

502.  Contributory  Negligence. — It  is  the  general  rule, 
founded  upon  the  maxim  volenti  non  fit  injuria,  and  Hu])iiict 
to  some  modilications,  that  where  one  person  is  injured  by 
the  concurring  negligence  of  himself  and  another,  his  con- 
tributing negligence  deprives  him  of  remedy  against  the 
otlier.  The  authorities  differ  as  to  the  way  in  which  con- 
tributory negligence  of  the  plaintiff  is  to  be  asserted  in  the 
action.  Perhaps  the  numerical  weight  of  authority  sanctions 
the  admission  of  the  defense  under  a  denial ;  and  this  is  on 
the  ground  that  the  averment  in  the  complaint,  that  tlio 
defendant's  negligence  caused  the  injury  complained  of,  im- 
ports the  freedom  of  the  plaintiff  from  concurring  negligence, 
and  tlie  denial  traverses  this  implication.^  But  upon  reason 
and  principle,  it  would  seem  that  contributory  negligence  is 
an  affirmative  defense,  to  be  pleaded  as  new  matter,  and  to 
be  proved  by  the  defendant.  And  this  view  is  supported  by 
good  authority.*  The  plaintiff  is  not  required,  with  a  single 
exception  soon  to  be  stated,  to  allege  his  freedom  from  con- 
tributing negligence  ;  ^  because,   (1)   the  presumption   that 

^  4  Harr.  L.  Review,  169,  170.  there  is  evidence  tending  to  show 

2  As  to  when  negligence  is  a  ques-  plaintiff's  contributory  negUgence, 

tion  of  law,  and  when  a  question  it  is  error  to  instruct  tlie  jury  that 

of    fact,   see    Saumby  v.    Roches-  the  law  presumes  that  the  plaintiff 

ter,  145  N.  Y.  81 ;  Bogart  v.  Ry.  was  exercising  ordinary  care  at  the 

Co.,  145  N.  Y.  283  ;  Scaggs  v.  Presi-  time  of  his    injury.     Haynes    v. 

dent,  etc.,  145  N.  Y.  201 ;  Kennedy  Trenton,  123  Mo.  326. 

V.  Ry.  Co.,  145  N.  Y.  288  ;  Sisco  v.  ^Cram  v.  Ry.  Co.,   87  Mo.  588  ; 

Ry.  Co.,  145  N.  Y.  296;  Walsh  v.  Ry.   Co.  v.    Dunlap,  29   Ind.  426  ; 

Ry.  Co.,  145  N.  Y.  310  ;  Ry.  Co.  v.  Ry.  Co.  v.  Washburn,  5  Neb.  117, 

Murphy,  50  O.  S.  135.  123. 

» Jones  v.Ry.  Co.,  42  Wis.  306;  &  Thompson  v.    Ry.  Co.,  51  Mo. 

Power  Co.  v.   Eastman,  20  Minn.  190;  Lee  v.  Troy  C.  G.  L.  Co.,  98 

277,  307  ;  Ry.  Co.   v.  Rutherford,  N.   Y.    115  ;    Yik  Hon    v.   Water 

29  Ind.  82;  Ttunpike  Co.  v.  Bald-  Works,  65  Cal.    619;  Robinson  v. 

win,   57  Ind.   86.     Cf.  Barholt  v.  Ry.  Co.,  48  Cal.  409. 
Wright,  45  O.  S.  182.     But  where 


§503  APPLICATION  OF  PRINCIPLES.  536 

he  exercised  care  dispenses  with  such  allegation,  and  (2)  the 
fact  of  plaintiff's  contributory  negligence  is  new  matter,  and 
to  negative  it  in  the  complaint  would  be  to  anticipate  a 
defense. 

503.  Contributory  Negligence,  Continued. — When  con- 
tributory negligence  is  pleaded  as  a  defense,  it  must  be 
alleged  in  the  same  manner  that  negligence  must  be  alleged 
as  a  ground  of  recovery — the  act  or  omission  must  be  stated, 
must  be  characterized  as  negligent,  and  must  be  shown  to 
have  contributed  to  the  injury  complained  of.  In  an  action 
against  a  railway  company  for  the  negligent  killing  of  a 
horse,  the  defendant  answered  that  the  horse  was  killed 
without  negligence  or  fault  on  the  part  of  the  defendant,  and 
because  of  the  gross  negligence  of  the  plaintiff.  It  was  held 
that  the  particular  act  or  omission  of  the  plaintiff  constitut- 
ing his  negligence  should  have  been  stated,  and  that  for  want 
thereof  the  answer  was  bad  on  demurrer.^ 

It  has  been  held,  and  on  sound  principle,  that  where  the 
necessary  averments  of  the  complaint  in  an  action  for  negli- 
gence suggest  the  inference  that  the  plaintiff  may  have  been 
guilty  of  contributory  negligence,  he  should  negative  such 
inference.^ 

COMPLAINT  FOR  NEGLIGENCE. 

On  the  day  of  ,  plaintiff  was  driving  his  horse  and  carriage 

on  and  along  the  public  highway  at  ,  and  defendant  was  at  the 

same  time  driving  his  horse  and  carriage  on  and  along  the  same  high- 
way, when  the  defendant  so  negligently  drove  and  managed  his  said 
horse  and  carriage,  that  by  reason  of  his  said  negligence,  and  without 
fault  or  negligence  on  the  part  of  plaintiff,  defendant's  carriage  struck, 
broke,  and  injured  plaintiff's  carriage,  to  the  damage  of  plaintiff 
dollars,  for  which  sum  he  prays  judgment  against  defendant. 

*  Ry.  Co.  V.  Dunlap,  29  Ind.  426.  ploye  assumed  the  risk  of  such  in- 

'Ry.  Co.  V.  Nolthenius,  40  O.  S.  jury,  he  must  not  only  have  known 

376.     Cf.  Robinson  v.  Gary,  28  O.  of  the  defect,  but  the  danger  aris- 

S.    241  ;  Ry.    Co.  v.    Whitacre,   35  ing    therefrom    must   have    been 

O.  S.  627.     It  has  been  held,  that  to  known  or  reasonably  apprehended 

bar  an  action  for  injury  received  by  him.     Lee  v.  Ry.  Co. ,  101  Cal. 

from  the  use  of  defective  machin-  118. 
ery,  on  the  ground  that  the  em- 


537  ACTIONS  AND  DEFENSES.        '  §504 


ni.   ACTIONS   FOR  EQUITABLE  RELIEF. 

504.  Specific  Performance. — An  action  to  enforce  per- 
formance of  a  contract  to  convey  lands,  a  proceeding  of 
frequent  occurrence,  is  well  adapted  for  illustrating  the 
equitable  remedy  of  performance  in  specie.  The  ground  for 
enforcing  specific  performance  is,  that  nothing  else  will 
supply  the  place  of  that  for  which  the  party  of  inherence  con- 
tracted ;  1  but  the  primary  right  and  duty  in  such  relations, 
in  equity  as  well  as  in  law,  rest  upon  the  contract  sought  to 
be  enforced.  The  granting  of  relief  by  way  of  specific  per- 
formance is  largely  in  the  discretion  of  the  court,  and 
where  it  is  granted  without  violating  any  fixed  rule  of  equity 
the  discretion  is  not  reviewable.^ 

The  complaint  in  such  case  should  show  a  valid  contract, 
and  should  allege  performance  of,  or  an  offer  and  readiness 
to  perform,  all  precedent  conditions  ;  ^  unless  it  appear  that 
the  defendant  has  repudiated  the  contract.*  If  the  complaint 
shows  the  contract  to  be  oral,  and  therefore  amenable  to  the 
defense  of  the  statute  of  frauds,  some  other  sufficient  authen- 
tication thereof — such  as  part  performance — should,  to  evade 
demurrer,  be  alleged.^ 

The  parties,  necessary  and  proper,  to  such  action,  have 
heretofore  been  considered.^  It  may  here  be  added,  however, 
that  where  the  action  is  by  the  vendee,  and  the  vendor  has 
made  a  subsequent  contract  to  convey,  the  second  vendee 
should  be  made  a  defendant.'^  And  in  such  case,  a  subsequent 
grantee  of  the  vendor,  with  notice  of  the  plaintiff's  rights, 
is  a  proper  party,  and  a  decree  may  be  had  against  him.^     So, 

1 1  Aus.  Jur.  486.  v.   Dougherty,  25    Cal.    266.     Cf. 

^Dunckel  v.  Dunckel,  141  N.  Y.  ante,  329. 

427.  6  Green  v.  Jones,  76  Me.  563.     Cf. 

8  Jenks  V.  Parsons,  2  Hun,  667 ;  Marie  v.  Garrison,  13  Abb.  N.  C. 

Frixen  V.  Castro,  58  Cal.  442  ;  Chess'  215,   321;    Hart  v.    McClellan,   41 

Appeal,  4  Pa.  St.  52 ;  s.  C.  45  Am.  Ala.  251 ;  Ante,  334. 

Dec.  668.  e  Ante,  454. 

<  Brown  v.  Eaton,  21  Minn.  409  ;  ^  Cassady  v.  Scallen,  15  Iowa,  93  ; 

Brock  V.  Hidy,  13  O.  S.  306  ;  Deich-  FuUerton  v.  McCurdy,  4  Lans.  132. 

mann  v.  Deichmann,  49  Mo.  107  ;  ^  Laverty  v.  Moore,  33  N.  Y.  658  ; 

Martin  v.  Merritt,  57  Ind.  34 ;  Gray  St.  Paul  Div.   v.  Brown,  9  Minn. 


§  505  APPLICATION  OF  PRINCIPLES.  533 

one  who  holds  a  deed  in  escrow,  and  refuses  to  deliver  it,  is 
a  proper  party  defendant.^  And  it  seems  that  mortgage  and 
judgment  lien-holders  inay  be  made  defendants.^ 

COMPLAINT  FOR  SPECIFIC  PERFORMANCE. 

(VENDEE  AGAINST  VENDOR.) 

On  the  day  of  ,  plaintiff  and  defendant  entered  into  a  con- 

tract, whereby  tlie  defendant,  being  then  the  owner  in  fee  of  [Here 
describe  the  land.]  agreed  to  convey  said  lands  to  plaintiff,  by  a  good 
and  sufficient  deed  of  warranty,  to  be  by  him  delivered  to  plaintiff  on 
the  day  of  ;  in  consideration  whereof,  plaintiff  agreed  to  pay 

to  defendant,  as  consideration  for  said  lands,  on  the  delivery  of  such 
deed,  the  sum  of  $ 

On  said  day  of  ,  plaintiff  duly  tendered  to  defendant  the 

said  sum  of  $  ,  and  demanded  such  deed  ;  but  defendant  then  re- 

fused to  deliver  to  plaintiff  such  conveyance. 

Plaintiff  has  all  the  time  been  ready  and  willing  to  pay  said  purchase- 
money  ;  and  he  now  brings  said  sum  of  $  into  court  for  defendant. 

Wherefore,  plaintiff  prays  that  defendant  be  decreed  to  convey  said 
lands  to  plaintiff  by  a  good  and  sufficient  deed  of  warranty.  ^ 

505.  Creditors'  Bills. — The  equitable  remedy  by  cred- 
itors' bill  is  to  reach  property  of  a  debtor  that  can  not  be  reached 
by  execution.  This  remedy  had  its  origin  in  the  limited 
scope  of  the  common-law  writ  of  execution,  which  was  con- 
fined in  its  operation  to  legal  interests ;  and  is  resorted  to 
for  the  purpose  of  reaching  property  that  is  of  such  character 
that  it  can  not  be  taken  on  execution. 

As  this  is  an  auxiliary  remedy,  based  upon  the  inefficiency 
of  legal  process,  it  is,  as  a  general  rule,  incumbent  upon  the 
plaintiff  to  show  that  he  has  exhausted  his  legal  remedy*  This 
is  generally  done  by  showing  that  he   has    obtained  a  judg- 

157 ;  Gregg  v,  Hamilton,  13  Kan.  ^  xhis  form  contains  no  specific 

333  ;  Keegan  v.  Williams,  22  Iowa,  facts  to  show  the  inadequacy  of 

378.     Cf.  Hunter  v.  Bales,  24  Ind.  the    legal     remedy    in    damages. 

299.  Where  land  is  the  subject  of  the 

1  Davis  v.  Henry,  4  W.  Va.  571.  contract   sought  to    be    enforced, 

^Seager  v.   Burns,  4  Minn.  141,  the  inadequacy  of  the  legal  remedy 

145  ;  McCombs  v.   Howard,  18  O.  is  well  settled,  and  need  not  be  al- 

S.  422,  436.     Cf.  Agard  v.  Valencia,  leged.     3  Pom.  Eq.  Jur.  1402,  and 

39  Cal.    292 ;   Chapman  v.   West,  cases  cited. 
17  N.  Y.  125. 


539  ACTIONS  AND  DEFENSES.  §  506 

ment,  and  that  execution  thereon  has  been  returned  nulla 
bona.  A  complaint  in  such  action  to  reach  property  not 
liable  to  seizure  upon  execution  must  allege,  (1)  that  plaint- 
iff's demand  is  in  judgment,  whereon  execution  may  issue 
against  both  personal  and  real  property ;  (2)  that  execution 
issued  thereon  has  been  returned  unsatisfied  for  want  of  such 
property  subject  to  levy ;  and  (3)  that  defendant  has  property 
applicable  to  the  satisfaction  of  the  judgment,  through  the 
instrumentality  of  a  court  of  equity.^ 

A  creditor  at  large  can  not  impeach,  in  equity,  a  convey- 
ance for  fraud.  This  is  elementary.  The  possibility  that 
the  plaintiff  may  get  judgment  on  his  claim  will  not  suffice, 
Courts  of  equity  are  not  tribunals  for  the  establishment  or 
collection  of  ordinary  demands  ;  and  until  judgment  has  been 
recovered,  the  creditor  has  no  right  to  come  into  a  court  of 
equity  to  interfere  with  or  control  the  property  of  his  debtor.^ 

506.  Creditors'  Bills,  Continued. — In  such  proceeding, 
various  kinds  of  property,  such  as  choses  in  action,  stocks, 
money,  rights  under  contract,  judgments,  property  in  the 
possession  of  another,  and  equitable  interests  in  real  estate, 
may  be  subjected  to  the  payment  of  the  judgment.  The  sal- 
ary of  an  officer,^  royalty  due  on  books  sold,*  and  a  vendor's 
lien  for  purchase-money,^  may  be  so  applied.  And  in  some 
of  the  states,  property  that  has  been  conveyed  away  in  fraud 
of   creditors  may  be  reached  by  this  action. 

^  2  Kent  Com.  443,  note  e;  2Sto.  performance.  Ordinarily,  he  should 
Eq.  Jur.  1216  b,  note  1  ;  High  on  aver  judgment,  and  execution  re- 
Injunctions,  250,  note  4 ;  Bisph.  turned  nulla  bona  ;  but  where 
Prin.  of  Eq.,  525-527  ;  3  Pom.  Eq.  there  has  been  a  sequestration  of 
Jur.  1415  ;  Tappan  v.  Evans,  11  the  property  of  the  corporation, 
N.  H,  311  ;  Miller  v.  Miller,  7  Hun,  and  a  receiver  appointed,  and  an 
208.  injunction     restraining     creditors 

2  Bldg.  Assn.  v.  Childs,  86  Wis.  from  suing  the   corporation,    the 

292,   295.     Cf.    Slagle  v.   Hoover,  creditor  is  excused  from  making 

137  Ind.  314.     A  creditor  seeking  said  allegations.     Hunting  v.  Blun, 

to  charge  a  stockholder  imder  the  143  N.  Y.  511  ;  Hirshfield  v.  Bopp, 

statute,  must  allege  all  the  facts  145  N.  Y.  84. 

upon  which  the  liability  depends.  ^  Newark  v.  Funk,  15  O.  S.  462. 

He  must  allege    performance    of  *  Lord  v.  Harte,  118  Mass.  271. 

conditions  precedent,  or  must  aver  ^  Edwards  v.  Edwards,  24  O.  S. 

facts  which,   in  law,  excuse  their  403. 


§  507  APPLICATION  OF  PErPTCIPLES.  540 

One  judgment  creditor  may  maintain  such  action,  or 
several  may  join  as  plaintiffs,  or  one  may  sue  on  behalf  of 
himself  and  others  similarly  situated.^  If  property  in  the 
hands  of  a  third  person  is  sought  to  be  subjected,  both  he  and 
the  judgment  debtor  must  be  made  defendants.^  A  receiver 
may  maintain  a  creditor's  bill ;  ^  and  when  necessary,  the 
court  will  appoint  a  receiver  to  take  charge  of  property  taken 
in  the  action.* 

COMPLAINT  BY  CREDITOR  TO  REACH  EQUITABLE  ASSETS. 

On  the  day  of  ,  plaintiff,  by  the  consideration  of  the  Court 

of  Common  Pleas  of  ,  obtained  a  judgment  against  the  defendant 

C.  D.  for  the  sum  of  $  ,  debt,  and  $  ,  costs,  which  is  wholly 

impaid.     On  the  day  of  ,  plaintiff  caused  an  execution  to  issue 

on  said  judgment,  which  was  duly  returned  wholly  unsatisfied,  for  want 
of  property,  real  or  personal,  whereon  to  levy.  The  said  defendant  R. 
S.  is  indebted  to  said  C.  D.  in  a  sum  unknown  to  plaintiff. 

Wherefore,  plaintiff  prays  that  said  defendant  R.  S.  be  required  to 
answer  herein,  disclosing  the  amount  and  character  of  his  said  indebted- 
ness to  C.  D.,  and  that  sufficient  thereof  to  satisfy  said  judgment,  with 
interest,  and  the  costs  herein,  be  subjected  to  the  payment  thereof. 

507.  Foreclosure  of  Mortgages. — A  mortgage  of  real 
estate  is  usually  given  to  secure  the  payment  of  a  debt,  or  the 
performance  of  some  obligation,  and  the  tendency  in  modern 
times  is,  to  treat  such  mortgage  as  a  security  incident  to  the 
debt  or  obligation  ;  hence  it  is  generally  held  that,  although 
the  mortgage  is  not  negotiable,  the  legal  transfer  of  a  note, 
,and  the  delivery  of  a  mortgage  securing  it,  without  assign- 
ment of  the  mortgage,  transfers  the  mortgage  as  an  incident  of 

1  Kerr  v.  Blodgett,  48  N.  Y.  63  ;  states,  where  a  proceeding  in  aid 
Doherty  v.  HoUiday,  137  Ind.  282.  of  execution,  is  provided  for  judg- 
Cf.  Terry  v.  Calnan,  4  S.  C.  508 ;  ment  creditors,  the  issuing  and  re- 
Baines  V.  "W.  C.  L.  Co.,  104  Cal.  1.  turn  of  an  execution  is  not  re- 
Contra,  Myers  v.  Fenn,  5  Wall,  quired  ;  and  it  is  sufficient  to  allege 
207.  only  that  the  debtor  has  no  prop- 

2  Miller  v.  Hall,  70  N.  Y.  250.  erty  subject  to  execution.      This 

3  Miller  v.  McKenzie,  29  N.  J.  shows  that  an  execution  would  be 
Eq.  291.  fruitless,  and,  besides,  is  the  allega- 

*  Bishp.  Prin.  of  Eq.  527 ;  High  tion  of  a  fact  instead  of  the  evi- 
no  Receivers,  399.     In  some  of  the    dence  thereof. 


541  ACTIONS  AND  DEFENSES.  §  508 

the  note  ;  ^  and  where  several  notes  secured  by  the  same  mort- 
gage are  transferred  to  different  persons,  the  transfers  operate 
as  assignments  pro  tanto  of  the  mortgage,  and  the  notes  are 
to  be  paid  from  the  proceeds  of  a  sale  in  foreclosure,  in  the 
order  of  their  maturity ,2  unless  this  order  is  varied  by  agree- 
ment. 

An  action  to  foreclose  a  mortgagor's  equity  of  redemption 
is  local,  and  must  be  brought  in  a  court  within  wliose  terri- 
torial jurisdiction  the  land  is  situate,  because  otherwise  the 
court  could  not  deal  with  the  subject  of  the  action .^ 

Joint  mortgagees,  or  joint  assignees  of  a  mortgage,  must 
join  as  plaintiffs ;  *  but  the  several  assignees  of  several  notes 
secured  by  one  mortgage  can  not  join  as  plaintiffs,  though 
they  should  all  be  made  parties.^  Where  the  mortgagee  is 
trustee  for  the  holders  of  notes  or  bonds  secured  by  the  mort- 
gage, he  is  a  proper  party  plaintiff;^  and  the  bond-holders,  be- 
ing represented  by  the  mortgagee,  are  neither  necessary  nor 
proper  parties ;  "'  though  the  bond-holders,  being  the  real 
parties  in  interest,  may  sue,  or  one  may  sue  for  himself  and 
the  others.^  If  the  mortgagee  be  dead,  his  admin  is  tiator, 
and  not  his  heir,  is  the  proper  party  plaintiff,  because  the 
interest  is  personalty.^ 

508.  Foreclosure  of  Mortgages,  Continued. — The  only 
necessary  parties  defendant  are,  the  mortgagor,  or  his  heirs, 
devisees,  grantee,  or  assignee  ;  for  these  are  the  only  persons 
interested  in  the  equity  that  is   to  be  foreclosed.^*'     Other 

1  Paine  v.  French,  4  Ohio,  318.  387;  Rankin  v.  Major,  9  Iowa,  297 ; 
Since  a  mortgage  is  not  negotiable,  Pettibone  v.  Edwards,  15  Wis.  95. 
the  assignee  thereof  takes  it  sub-  ^  Hays  v.  Gas  Light  Co.,  29  O.  S. 
ject  to  the  equities  between  the  330. 

original  parties.    Rapps  v.  Gottlieb,  ''  Poe  v.  Ry.  Co.,  10  O.  S.  372. 

142  N.  Y.  164.  8  Ettlinger  v.  Ry.  Co.,  142  N.  Y. 

2  Winters  v.  Bank,  33  O.  S.  250  ;  189.  Cf.  Reed  v.  The  Evergreens, 
Rankin  v.  Major,  9  Iowa,  297.  21  How.  Pr.  319  ;  Blair  v.  Shelby, 

3  Ante,  468.  etc.,  Assn.,  28  Ind.  175. 

*  Woodward  v.  Wood,  19  Ala.  9  McArthur  v.  Franklin,  16  O.  S. 
213  ;  Noyes  v.  Sawyer,  3  Vt.   160  ;     193,  206. 

Wing  V.  Davis,  7  Greenl.   31.     Cf.  i"  Lennox  v.  Reed,  12  Kan.  223- 

Stucker  v.  Stucker,  3  J.  J.  Marsh.  Cf.  Hall  v.  Nelson,  23  Barb.   88 ; 

301.  Cord  V.  Hirsch,  17  Wis.  403  ;  Briv 

*  Swenson  v.  Plow  Co.,  14  Kan,  ton  v.  Hunt,  9  Kan.  228  ;  Simms  v. 


§  508  APPLICATION  OF  PRINCIPLES.  542 

lien-holders  should  be  made  defendants,  so  that  the  purchaser 
may  acquire  the  complete  title,  free  from  incumbrances. 
But  tliese  are  not  necessary  parties,  and  may  be  omitted ; 
in  which  case  the  land  would  be  sold  subject  to  their  rights.^ 
A  mortgagor  who  has  conveyed  away  his  equity  of  redemp- 
tion is  not  a  necessary  party  to  an  action  of  foreclosure, 
wherein  no  other  relief  is  asked.^  But  if  judgment  for  the 
•debt  is  asked  in  the  same  action,  as  may  be  done  in  some 
states,  the  mortgagor,  if  the  debtor,  or  his  administrator,  if 
he  be  dead,  must,  of  course,  be  made  a  defendant. 

It  has  generally  been  held  that  one  claiming  title  adversely 
to  the  mortgagor  is  not  a  proper  party,  for  the  reason  that 
a  court  of  equity  can  not  adjudicate  adverse  titles  in  such 
action.^  The  wife  of  the  mortgagor,  if  she  has  either  dower 
or  a  right  to  redeem,  should  be  made  a  party.'*  A  grantee  of 
the  mortgagor,  who  assumes  the  mortgage  as  part  of  the 
purchase-price  of  the  land,  is  not  only  a  necessary  defendant, 
but  may  be  subjected  to  a  personal  judgment.^ 

The  right  to  join  in  one  action,  a  demand  for  personal 
judgment  and  for  a  decree  of  foreclosure,  separately  stated, 
has  already  been  fully  considered.^  As  between  the  original 
parties  to  a  mortgage,  record  thereof  is  not  necessary ;  but 

Bichardson,  33  Ark.  297  ;  Renshaw  103  ;  Bank  v.  Thompson,  55  N.  Y. 

^.  Taylor,  7  Oreg.  315.  7 ;  Wilkinson  v.  Green,  34  Mich. 

1  Ante,  454.  Cf.  Morris  v.  221  ;  Banning  v.  Bradford,  21  Minn. 
Wheeler,  45  N.  Y.  708,  holding  a  308  ;  Rathbone  v.  Hooney,  58  N.  Y. 
subsequent  incumbrancer  to  be  a  463  ;  Dial  v.  Reynolds,  96  U.  S,  340. 
necessary  party.  Mr,  Pomeroy  Contra,  Bradley  v.  Parkhurst,  20 
says  this  case  is  so  clearly  errone-  Kan,  462. 

ous  that  it  can  only  be  regarded  as  ^  Chambers  v.  Nicholson,  30  Ind, 

an  inadvertence.     Pom,  Rem.  336,  349 ;  McArthur  v.  Franklin,  15  O, 

in  nota.  S.  485.     Cf.  Ketchem  v.  Shaw,  28 

2  Dniry  v.  Clark,  16  How,  Pr.  O.  S.  503  ;  Etheridge  v.  Vernoy,  71 
424  ;  Delaplaine  v.  Lewis,  19  Wis.  N.  C.  184,  186. 

476  ;  Stevens  v.  Campbell,  21  Ind.  ^  ^^nte,   420 ;    Bailey  v,   Lee,   14 

471  ;  Williams  v.  Meeker,  29  Iowa,  Hun,  524  ;  Semple  v,  Lee,  13  Iowa, 

292,  294.  304.      Cf.   Johnson  v.   Monell,   13 

Croghan  v,  Spence,  53  Cal.  15  ;  Iowa,  300  ;  Tanguay  v.  Felthousen, 

Pelton  V.  Farmin,    18    Wis.    222 ;  45  Wis.  30,  33. 

Brundage  v.  Miss.  Soc,  60  Barb.  «  Ante,  215,  216. 
204  ;  Palmer  v.  Yager,  20  Wis.  91, 


543  ACTIONS  AND  DEFENSES.  g  509 

if  other  lien-holders  are  made  parties,  the  complaint  should 
state  the  date  of  the  record  of  plaintiff's  mortgage.  The 
requirement  to  file  with  the  complaint  a  copy  of  the  instru- 
ment on  which  the  claim  is  founded,^  does  not,  ordinarily, 
apply  to  mortgages. 

COMPLAINT  ON  NOTE  AND  MORTGAGE. 

First  Cause  of  Action. 

On  the  day  of  ,  defendant  C.  D.  made  and  delivered  to 

plaintiff  his  promissory  note  of  that  date,  whereby  he  promised  to  pay 
to  plaintiff,  or  order,  dollars,  months  after  date,  no  part  of 

which  has  been  paid. 

Second  Cause  of  Action. 

Plaintiff  makes  the  allegations  of  said  first  cause  of  action  part  hereof, 
and  further  says  :  At  the  time  said  defendant  C.  D.  so  delivered  said 
note,  and  to  secure  the  payment  thereof,  he  executed  and  delivered  to 
plaintiff  his  mortgage  deed,  conveying  to  plaintiff,  his  heirs  and  assigns, 
certain  lands,  situate  in  said  county,  and  described  as  follows  :  [Here 
describe  the  premises.]  Said  conveyance  was  upon  condition,  therein 
written,  that  if  the  defendant  should  pay  said  note  when  due,  the  said 
conveyance  should  thereupon  be  void  ;  otherwise,  to  remain  in  force. 

On  the  day  of  ,  at  o'clock  a.  m.,  plaintiff  delivered 

said  mortgage  to  the  Recorder  of  said  county,  at  his  office  therein,  for 
record  ;  and  the  same  was  thereafter  duly  recorded. 

Said  defendant  R.  S.  claims  to  have  a  lien  upon  said  premises  ;  but  if 
he  has  such  lien,  it  is  subordinate  and  inferior  to  plaintiff's  said  claim. 

Plaintiff  prays  judgment  against  said  defendant  C.  D.  for  said  sum  of 
dollars,  with  interest  from  ;  he  prays  a  decree  for  the  sale 

of  said  lands  according  to  law,  and  the  application  of  the  proceeds  to  the 
payment  of  such  judgment ;  he  prays  that  the  said  pretended  lien  of  said 
defendant  R.  S.  be  adjudged  to  be  subordinate  and  inferior  to  the  said 
lien  of  plaintiff  ;  and  he  prays  for  such  other  relief  as  he  may  be  found 
entitled  to. 

509.  Reformation  of  Instruments. — The  reformation  of 
instruments  by  decree  is  the  exercise  of  a  remedial  right 
recognized  only  in  equity.  The  occasions  for  the  exercise  of 
this  equitable  remedy  generally  arise  from  mistake  or  fraud. 
Reformation  is  a  very  delicate  remedy ;  much  more  so  than 
rescissio7i  or  cancellation.  To  reform  an  instrument,  and 
give  it  full  force  in  its  modified  form,  is  a  much  more  impor- 
tant exercise  of  judicial  power,  than  simply  to  cancel  and  set 
it  aside.     Therefore,  he  who  seeks  to  rectify  an  instrument 

1  Ante,  370. 


§510  APPLICATION  OF  PRINCIPLES.  544 

on  the  ground  of  mistake  must  establish,  most  clearly  and 
satisfactorily,  that  the  alleged  intention  to  which  he  asks  it  to 
be  conformed,  continued  concurrently,  in  the  minds  of  all 
the  parties,  down  to  the  time  of  its  execution.^  If  there  has 
been  mistake  on  one  side  only,  the  utmost  relief,  if  any  can 
be  had,  is  rescission,  not  reformation.^  Of  course,  the  case  is 
very  different  where  there  has  been  fraud.  And  it  has  been 
held  that  where  there  is  mistake  on  one  side,  and  fraud  on 
the  other,  reformation  may  be  had.^  But  where  a  contract 
sought  to  be  reformed  is  oral,  and  is  within  the  statute  of 
frauds,  a  plea  of  the  statute  is  a  bar  to  the  action.*  It  has 
been  held  that  there  must  be  a  demand  for  a  correction  of  a 
mistake,  before  an  action  to  reform  can  be  maintained ;  ^  and 
while  this  is  not  a  uniform  requirement,  it  rests  upon  the 
principle  that  without  demand  and  refusal,  there  is  no  delict 
of  the  defendant. 

The  joinder  in  one  action,  of  a  cause  of  action  to  reform 
an  instrument  and  a  cause  of  action  to  enforce  it,  has  here- 
tofore been  fully  considered.^ 

510.  Reformation  of  Instruments,  Continued. — A 
complaint  for  the  reformation  of  a  contract  must  show  that 
the  plaintiff  has  performed  all  his  precedent  obligations,  if 
there  are  such ;  ^  it  must  state  the  true  agreement  in  its 
terms,  and  not  merely  in  legal  effect ;  ^  it  must  point  out 
■clearly  the  mistake ;  and  if  relief  is  sought  against  a  third 
person,  whose  rights  have  intervened,  it  must  allege  that  he 
liad  actual  knowledge  of  the  mistake  at  the  time  he  inter- 
vened.^ Inasmuch  as  reformation  relates  to  an  injury 
remediable  only  in  equity,  the  complaint  need  not  allege  the 
want  of  adequate  remedy  at  law. 

1  Bisph.  Prin.  of  Eq.  469.  ^  Lambkin  v,  Reese,  7  Ala.  170  ; 

2  Douglass  V.  Grant,  12  111.  App.  Axtel  v.  Chase,  77  Ind.  74  ;  Popijoy 
273 ;  BeUows  v.  Stone,  14  N.    H.     v.  Miller,  133  Ind.  19. 

r.^,   202;  Cooper  v.   Ins.   Co.,   14  e  Ante,  212-214. 

Wright  (Pa.),  299.  '  Conaway  v.  Gore,  21  Kan.  725. 

«  Wells  V.  Yates,  44  N.  Y.  525  ;  8  Stephens  v.  Murton,  6  Oreg.  193. 

Hitchens  v.   Pettingill,    58  N.    H.  »  Easter  v.  Severin,  64  Ind.  375; 

886.  Strang  v.  Beach,  11  O.  S.  283.     Cf. 

*  Glass  V.  Hulbert,  102  Mass.  31.  Van  Thornily  v.  Peters,  26  O.  S.  471. 


545  ACTIONS  AND  DEFENSES.  §510 

COMPLAINT  TO  REFORM  A  DEED. 

On  the  day  of  ,  the  defendant,  in  consideration  of  $ 

sold  to  plaintifiE  the  following  premises  :  [Here  describe  the  premises 
correctly.] 

On  the  same  day,  and  for  the  purpose  of  conveying  said  prem- 
ises to  plaintiff,  defendant  executed  and  delivered  to  plaintiff  a  deed, 
which  both  plaintiff  and  defendant  intended  should  convey,  and  which 
they  both  believed  did  convey,  the  said  premises  so  sold  as  aforesaid  ; 
whereas,  by  the  mutual  mistake  of  plaintiff  and  defendant,  the  descrip- 
tion written  in  said  deed  was  this  :  [Here  insert  the  erroneous  descrip- 
tion, as  in  the  deed.]  On  discovering  said  mistake,  plaintiff  requested 
defendant  to  correct  the  same,  which  he  refused  to  do. 

Wherefore,  plaintiff  prays  that  the  said  deed  may  be  reformed,  so  as 
to  describe  said  premises  properly  ;  and  he  prays  for  such  other  relief  in 
the  premises  as  he  may  be  found  entitled  to. 
35 


CHAPTER  XXIX. 

OCCASIONAL  INCIDENTS  OF  PROCEDURE. 

511.  Scope  and  Purpose  of  this  Chapter. — There  are 
some  incidents,  of  occasional  occurrence,  by  which  the  regular 
order  of  procedure  may  be  varied,^  and  which,  though  they 
relate  more  to  practice  than  to  pleading,  are  indispensable 
to  a  full  treatment  of  the  latter ;  and  these,  to  avoid  fre- 
quent digressions  in  an  orderly  treatment  of  principles,  are 
grouped  in  this  final  chapter. 

512.  The  Pendency  of  an  Action. — It  is  sometimes  im- 
portant to  determine  at  what  point  of  time  an  action  is  to  be 
deemed  commenced.  The  solution  of  this  question  may  be 
necessary  in  order  to  determine  when  the  jurisdiction  of  the 
court  attached,  or  when  the  proceeding  became  lis  pendens, 
or  whether  the  bar  of  the  statute  of  limitations  is  available  ; 
and  it  may  in  like  manner  become  important  to  determine 
when  the  pendency  of  an  action  ceases,  so  that  a  judgment 
therein  has  become  res  judicata,  or  may  be  admitted  in  evi- 
dence. These  inquiries  as  to  the  pendency  of  an  action  do 
not  admit  of  direct  and  categorical  answers.  Generally 
speaking,  it  may  be  said  that  the  jurisdiction  of  the  court 
attaches  to  the  defendant,  upon  his  voluntary  and  un- 
qu<ilified  appearance,  or  when  he  has  been  legally  served 
with  summons  ;  and  this,  without  regard  to  defects  in  the 
complaint.^  And,  generally,  there  is  lis  pendens  as  to  the 
subject  of  the  action,  from  the  date  of  such  appearance,^  or  of 
such  service  of  process,  or  of  constructive  service  by  publi- 
cation.* 

1  Steph.  PI.  154.  8  Brundage  v.   Briggs,  25  O.    S. 

2  Per  Mason,  C.  J.,  in  Johnson  v.    652. 

Jones,  2  Neb.  126.  *  Bennett  v.   Williams,   5    Ohio, 

461. 
546 


547  INCIDENTS  OF  PROCEDURE.  ^513 

It  lias  been  held  that  the  pendency  of  an  action  continues 
until  the  time  for  appeal  has  expired,  unless  judgment  there- 
in has  been  sooner  satisfied  ;  and  that  during  such  pendency 
of  the  action  a  judgment  therein,  being  liable  to  reversal  on 
appeal,  is  not  res  judicata^  and  is  not  admissible  in  evidence 
to  prove  the  facts  therein  recited.^ 

513.  Agreed  Cases. — The  codes  generally  provide  that 
the  parties  to  a  controversy  that  might  be  the  subject  of  a 
civil  action,  may  make  and  present  a  case  by  agreement. 
This  is  done  by  presenting  to  the  court  a  statement,  in  writ- 
ing, of  the  operative  facts  upon  which  the  parties  rely,  for 
relief  and  for  defense,  and  asking  the  judgment  of  the  court 
thereon.  In  such  case,  there  are  neither  pleadings  nor  pro- 
cess, nor  is  there  any  controversy  as  to  the  facts ;  the  only 
contention  being  as  to  the  legal  operation  of  the  facts 
stated. 

To  insure  good  faith,  and  to  prevent  the  submission  of 
feigned  controversies,  it  must  appear,  by  affidavit  of  one  of 
the  parties,^  that  the  controversy  is  real,  and  that  the  proceed- 
ing is  in  good  faith,  to  determine  the  rights  of  the  parties. 
Such  affidavit  is  held  to  be  requisite  to  give  the  court  juris- 
diction without  pleadings.^ 

In  such  cases,  neither  a  motion  for  a  new  trial,  nor  a  bill 
of  exceptions,  is  requisite  to  a  review  thereof  in  error.*  This 
is  so,  for  the  plain  reasons,  that  (1)  the  facts,  being  agreed 
to,  would  be  the  same  on  a  new  trial  as  on  the  former,  and 
(2)  there  would  be  nothing  to  be  brought  upon  the  record 
by  a  bill  of  exceptions.  An  exception  to  the  decision  of  the 
court  is  all  that  is  requisite  in  such  case  for  a  review  in 
error.^ 

1  In  re  Blythe,  99  Cal.  472.  Plainfield  v.  Plainfield,  67  Wis.  525. 

2  An  attorney  naay  not  make  the  Cf.  Donald  v.  St.  Louis,  etc. ,  Co. , 
affidavit.      Bloomfield    v.    Ketch-    52  Iowa,  411. 

am,  95  N.  Y.  657.     Where  the  State,  *  Brown  v.  Mott,   22  O.  S.    149; 

or  a  corporation  is  a  partj-,  there  State  v.  Board,  66  Ind.  216 ;  Lofton 

must  be  an  exception  to  the  rule  v.  Moore,  83  Ind.  112. 

requiring  the  affidavit  of  a  party.  ^Warrick,  etc.,  Co.  v.  Hougland, 

State  V.  Coghlen,  86  Ind.  404.  90  Ind.  115,  117  ;  Fisher  v.  Purdue, 

3  Sharpe  v.  Sharpe,  27  Ind.  507,  48  Ind.  323. 
508  ;  Myers  v.  Lawyer,  99  Ind.  237  ; 


§§514-515  APPLICATION  OF  PRINCIPLES.  543 

514.  Agreed  Cases,  Continued. — An  agreed  case  is  very 
different  from  an  agreement  as  to  the  facts  in  a  case.  An 
agreed  case  dispenses  with  pleadings,  while  an  agreed  state- 
ment of  facts  dispenses  with  evidence,  but  not  with  plead- 
ings. In  the  latter  case,  both  a  motion  for  a  new  trial  and  a 
bill  of  exceptions  are  requisite  for  a  review  in  error,  while  in. 
the  former  they  are  not.  The  object  of  an  agreed  case  is,  to 
enable  parties  to  submit  for  adjudication  a  real  controversy 
as  to  the  legal  operation  of  undisputed  facts,  by  a  short  and 
convenient  mode,  without  resort  to  legal  process  or  formal 
pleadings.^  The  statement  should  contain  only  operative 
facts,  as  distinguished  from  evidential  facts  ;  ^  for  tlie  court 
will  not,  in  such  case,  determine  any  question  of  fact.^  The 
facts  must  be  such,  and  the  manner  of  statement  must  be 
such,  that  the  court  may,  by  judgment  or  decree,  determine 
and  adjudicate  the  rights  of  the  parties.  It  is  at  least  doubt- 
ful whether  any  amendment  or  correction  of  the  statement 
in  such  case  can  be  allowed,  unless  it  be  to  correct  an  error 
brought  about  by  fraud  or  pure  accident.* 

515.  Lost  Pleadings  and  Writs. — Pleadings  being 
essential  to  the  formation  of  an  issue,  and  to  the  trial  of  a 
cause,  if  an  original  pleading  be  lost,  or  be  withheld  by  any 
person,  the  court  may,  upon  motion,  order  a  copy  thereof  to 
be  substituted;  and  this  power  of  the  court  is  usually  ex- 
tended, by  statute,  to  the  substitution  of  copies  for  lost  or 
destroyed  writs,  reports,  verdicts,  bills  of  exceptions,  orders, 
entries,  and  other  proceedings  in  an  action.  Where  a  copy  has 
been  so  substituted  for  a  lost  pleading,  and  the  original  is 
afterward  found,  the  copy  should  be  stricken  from  the  files,  so 


iRy.  Co.  V.  Perry  Co.,  30  O.  S.  Dickinson  v.  Dickey,  76  N.  Y.  602. 

120  ;  Steamship  Co.  v.  Voorhis,  104  *  State  v.  Coghlen,  86  Ind.  404, 

N.  Y.  525  ;  Williams  v.  Roclaester,  413.     It  has  been  said  of  this  case, 

2  Lans.  169  ;  Day  v.  Day,  100  Ind.  that  it  "  must  be  regarded  as  an  un- 

460,  462.  usual  one,  and  the  rule  asserted, 

3  Powers  V.  Prov,  Inst. ,  122  Mass.  one  that  can  not  be  successfully 

443.  invoked,   except  in  the  strongest 

8  Clark  V.    Wise,  46  N.   Y.  612  ;  and  clearest  cases  of  excusable  and 

Smith  V.  Cudworth,  24  Pick.  196  ;  unavoidable     mistake."      Elliotts' 

Wood  V.   Squires,   60  N.  Y.  191 ;  App.  Proc.  231,  and  notes. 


549  INCIDENTS  OF  PROCEDURE.  §516 

that  the  record  may  not  be  needlessly  incumbered  with  both 
papers.^ 

516.  Demurer  to  Evidence. — In  the  trial  of  a  cause  to  a 
jury,  after  the  party  having  the  burden  of  proof  upon  the 
issue  has  introduced  his  evidence ;  the  adversary  party  may 
demur  to  the  evidence  ;  that  is,  he  may  demand  the  judg- 
ment of  the  court  upon  the  facts  shown  by  the  evidence,  just 
as  a  party  may,  by  demurrer  to  a  pleading,  demand  the  judg- 
ment of  the  court  upon  the  facts  therein  pleaded.^  Such  de- 
murrer concedes  the  truth  of  all  the  facts  in  issue  which  the 
evidence  tends  to  prove,  and,  like  a  demurrer  to  a  pleading, 
presents  an  issue  in  law.  The  relevancy  of  evidence  to  a 
given  issue — that  is,  whether  it  tends  to  prove  or  disprove 
the  issue — is  matter  of  law,  and  is  to  be  determined  by  the 
court ;  but  the  iveight  of  evidence — that  is,  whether  it  is  suf- 
ficient to  prove  or  disprove  a  fact  in  issue — is  matter  of  fact, 
to  be  determined  by  the  jury.  Hence,  upon  demurrer  to 
evidence,  the  court  may  not  weigh  the  evidence,  for  that 
would  be  usurping  the  province  of  the  jury  ;  and  if  there  is 
evidence  tending,  in  any  appreciable  degree,  to  prove  the 
facts  which  it  was  offered  to  sustain,  the  demurrer  must  be 
overruled.^  The  evidence,  to  warrant  the  overruling  of  a 
demurrer,  must,  of  course,  tend  to  prove  each  material  fact 
in  issue. 

At  common  law,  upon  demurrer  to  evidence  the  jurj-  was 
discharged ;  and  if  the  demurrer  was  wrongly  overruled,  it 
was  error,  remediable  by  bill  of  exceptions  and  writ  of  error.* 
But  under  the  modern  procedure,  it  is  the  prevailing  practice 
for  the  demurrant,  upon  the  overruling  of  his  demurrer,  to 


1  Sweet  V.  Brown,  61  Iowa,  669.  ^  steph.  PL  180  ;  Gould  PI.  ix.  47. 
It  has  been  held,  that  where  parties,  ^jyfiiburn  v.  Phillips,  136  Ind. 
in  an  appellate  court,  proceed  to  680  ;  Dick  v.  Ry .  Co. ,  38  O.  S.  389. 
trial,  verdict,  and  judgment,  with-  But  in  some  jurisdictions,  a  de- 
out  pleadings,  the  judgment  will  not  murrer  to  evidence  will  be  sus- 
be  reversed  on  error.  Hallam  v.  tained,  if  the  evidence  would  not. 
Jacks,  11  O.  S.  692.  In  such  case,  on  motion  for  a  new  trial,  sustain 
the  court  having  jurisdiction  by  the  a  verdict  for  the  party  who  intro- 
appeal,  the  want  of  pleadings  was  a  duced  it. 
mere  irregularity.   Ante,  465,  note.  *  Gould  PI.  ix.  73,  74. 


§517  APPLICATION  OF  PRINCIPLES.  550 

introduce  his  evidence  ;  and  when  lie  does  this,  he  can  not 
avail  himself  of  an  exception  to  the  overruling  of  the  de- 
murrer.^ 

In  the  modern  practice,  this  interception  of  the  trial  is 
variously  denominated.  It  may  be  by  demurrer  to  the  evi- 
dence, by  motion  to  direct  a  verdict  for  the  defendant,  or  by 
motion  to  arrest  the  testimony  from  the  jury,  and  render  judg- 
ment against  the  party  who  introduced  it.  But  whatever  the 
mode,  it  involves  an  admission  of  all  the  facts  which  the 
evidence  tends  to  prove,  and  presents  only  a  question  of  law, 
as  to  whether  each  fact  in  issue,  and  indispensable  to  a  re- 
covery, has  been  supported  by  some  evidence.^ 

517.  Special  "Verdict. — The  verdict  of  a  jury  may  be 
either  general  or  special.  A  general  verdict  is  simply  a 
finding  "for  the  plaintiff,"  or  "for  the  defendant;"  and 
where  damages  are  awarded,  the  amount  thereof  as  found  is 
added.  A  special  verdict  is  a  statement  of  the  facts  in  issue 
found  by  the  jury,  from  the  evidence.  In  the  one  case,  the 
jury  makes  the  application  of  the  law  to  the  facts  as  found, 
and  presents  the  result  of  such  finding  and  such  application  ; 
in  the  other  case,  the  court  is  to  make  the  application  of  the 
law  to  the  facts  as  found. 

The  history  of  the  common  law  shows  a  strife  between  the 
judges  and  the  juries  as  to  whether  the  finding  of  a  special 
verdict  should  be  optional  with  the  jury,  or  whether  it  should 
be  under  the  control  of  the  judge ;  but  it  finally  became  a  set- 
tled rule  of  procedure  that  the  jury  might,  at  its  option,  find 
a  special,  instead  of  a  general,  verdict,^  In  such  case,  the 
jury,  after  setting  out  the  facts  as  found,  concluded  their 
verdict  as  follows  :  "  that  they  are  ignorant,  in  point  of  law, 
on  which  side  they  ought,  upon  these  facts,  to  find  the  issue  ; 
that  if,  upon  the  whole  matter,  the  court  shall  be  of  opinion 

^Ins.   Co.  V.  Crandal,  120  U.  S.  viewed  only  on   appeal  from  the 

527 ;  Robertson  v.  Perkins,  129  U.  judgment,  and  not  on  refusal  of 

S.  233.  motion   for    new  trial.     Evans  v. 

2  A  motion  for  judgment  on  the  Paige, 102  Cal.  132,  and  cases  cited, 

pleadings  is  in  effect  a  demurrer  to  ^4  Harv.  Law  Rev.  165-6  ;  Steph. 

the  pleading  of  the  adverse  party  ;  PI.  180  ;  Mayor  v.  Clarke,  3  A.  &  E. 

and  the  ruling  thereon  can  be  re-  506. 


551  INCIDENTS  OF  PROCEDURE.  §518 

that  the  issue  is  proved  for  the  plaintiff,  they  find  for  the 
l)laintiff  accordingly,  and  assess  the  damages  at  but  if 

the  court  shall  be  of  an  opposite  opinion,  then  vice  versa.""  ^ 

518.  Special  Verdict,  Continued. — The  prevailing  prac- 
tice in  modern  times  is,  to  subject  the  jury  to  the  direction 
of  the  court,  and  to  require  the  special  verdict  in  addition  to, 
and  not  in  lieu  of,  a  general  verdict;  and  when  the  special 
finding  of  facts  is  inconsistent  with  the  general  verdict,  the 
former  controls  the  latter,  and  judgment  should  be  entered 
accordingly .2  The  special  verdict  is  generally  in  the  form 
of  answers  to  interrogatories  submitted  to  the  jury ;  and  in 
some  jurisdictions  it  is  the  right  of  either  party  to  request  a 
special  verdict  upon  any  issue,  or  as  to  any  material  fact 
involved.  Interrogatories  submitted  for  a  special  verdict 
should  be  limited  to  the  material  operative  facts,  as  distin- 
guished from  mere  evidential  facts.^  For  example,  where 
the  question  whether  the  defendant  was  guilty  of  any  negli- 
gence that  was  the  proximate  cause  of  the  injury  is  submitted 
to  the  jury  for  a  special  verdict,  a  question  requiring  the 
jury  to  state  in  what  that  negligence  consisted  is  properly  re- 
fused, as  calling  for  mere  evidential  facts.* 

The  right  to  demand  special  findings,  and  the  control  of 
a  general  verdict  by  such  findings,  are  valuable  aids  and 
safeguards  in  the  administration  of  justice.  The  general 
verdict  of  a  jury  is  the  result  of  its  finding  of  facts  and  of 
its  application  of  the  law  to  the  facts  so  found ;  in  other 
words,  a  general  verdict  is  the  statement  of  a  conclusion,^ 
based  upon  facts  not  stated,  and  upon  an  application  of  law 
that  is  not  disclosed.  There  may  be  error  in  the  finding  of 
facts,  or  in  the  application  of  the  law,  or  in  both,  and  yet 
neither  mistake  is  disclosed.  A  special  verdict  discloses  the 
facts  found,  and  not  mere  conclusions  reached,  and  leaves 
the  application  of  the  law  to  the  court,  where  it  properly  be- 
longs. 

iSteph.  PI.  180.  *  McCoy  v.  St.  Ry.  Co.,  88  Wis. 

2  Cox  V.  Delmas,  99  Cal.  104.  56. 

8  Ohlweiler  v.  Lohmann,  88  Wis. 
75. 


§§  519-520  APPLICATION  OF  PRINCIPLES.  552 

510.  Withdrawing  a  Juror. — It  was  a  practice  at  common 
law,  and  the  practice  obtains  in  many  of  the  states,  when 
the  plaintiff  was  taken  by  surprise,  to  allow  him  to  withdraw 
a  juror.  This  works  a  continuance  of  the  case,  and  is  a 
means  whereby  the  plaintiff  may  recede  from  a  conclusion 
of  the  trial.  The  withdrawal  of  a  juror  is  subject  to  the 
discretion  of  the  court,  and  should  be  at  the  cost  of  the  party 
asking  it.^ 

520.  OfYariance. — A  variance  is  a  disagreement  between 
the  allegations  and  the  proof.  A  variance  in  mere  matter  of 
form,  or  as  to  matter  not  material,  will  be  disregarded,  or 
may  be  amended.  The  variance  between  "  First  National 
Bank  of  Crawfordsville,  Indiana,"  and  "  First  National  Bank 
of  Crawfordsville,"  is  amendable  on  the  trial,  and  will  not  be 
regarded  in  a  reviewing  court.^  A  variance  in  some  matter 
that  is,  in  point  of  law,  essential  to  the  claim  asserted,  is 
fatal  to  the  party  from  whose  evidence  it  arises ;  for  a  party 
must  recover,  if  at  all,  upon  the  demand  asserted  in  his  plead- 
ing, and  not  upon  some  other  that  may  be  developed  in  his 
proofs.^  For  example,  if  fraud  is  alleged  as  the  basis  of  an 
action,  a  recovery  may  not  be  had  on  proof  of  a  right  of 
action  on  contract,  even  though  the  facts  proved  would,  in  an 
action  based  thereon,  warrant  a  recovery.*  And  equity  will 
not  relieve  on  ground  not  stated  in  the  complaint.^ 

Variance  most  frequently  arises  in  actions  for  defamation. 
An  allegation  that  the  defendant  said  that  "  L.  is  pregnant 
and  gone  seven  months  with  child,"  is  not  sustained  by  proof 
that  he  said  "  have  you  heard  anything  about  L.'s  being  preg- 
nant by  Dr.  ?  "  « 

An  immaterial  variance  may  be  disregarded.  A  material 
variance  may,  in  the  discretion  of  the  court,  be  cured  by 
amendment  of  the  pleading,  upon  terms.  A  complete  failure 
of  proof  is  not  amendable.  An  allegation  that  defendant 
killed  plaintiff's  cow,  and  proof  that  the  defendant  fatally 

1  Steph.  PI.  336,  note  ;  Scholfleld        ^  Rged  v.  Norton,  99  Cal.  617. 

V.  Settley,  31  111.  515  ;  Walcott  v.        *  Truesdell  v.  Bourke,  145  N.  Y. 
Studebaker,  34  Fed.  Rep.  8.  612. 

2  Sayers  v.  Bank,  89  Ind.  380.  ^  Cox  v.  Esteb,  68  Mo.  110. 

*Long  V.  Fleming,  2  Miles,  104. 


553  INCIDENTS  OF  PROCEDURE.  §§521-522 

wounded  her,  and  that  plaintiff  himself  killed  her,  is  not  a 
fatal  variance.^  A  variance  that  does  not  amount  to  complete 
failure  of  proof  is  waived,  if  no  objection  be  made  on  that 
ground  in  the  trial  court.^  An  objection  that  the  judgment 
exceeds  tlie  ad  damnum  of  the  complaint  can  not  be  raised 
for  the  first  time  in  the  reviewing  court.^ 

621.  Judgment  non  Obstante  Veredicto. — The  party  ob 
taining  a  verdict  is  not  always  entitled  to  judgment  thereon 
Sometimes  the  insufficiency  of  the  pleadings,  or  the  immater 
iality  of  the  issue,  is  not  observed,  or  objection  on  such 
ground  is  not  made,  until  after  trial  and  verdict ;  and  where  the 
defect  is  one  not  aided  by  verdict,  the  defeated  party  may, 
in  some  cases,  prevent  a  judgment  on  the  verdict. 

By  the  common  law,  where  the  defendant  has  pleaded  in 
bar,  in  confession  and  avoidance,  and  it  is  discovered,  after 
verdict  for  the  defendant,  that  his  plea  is  bad  in  substance, 
the  plaintiff  may  move  for  judgment  non  obstante  veredicto  ; 
that  is,  that  judgment  be  entered  in  his  favor,  without  regard 
to  the  verdict  the  theory  being,  that  if  the  plea  is  bad  in  law, 
the  verdict,  which  only  finds  it  true  in  point  of  fact,  does 
not  authorize  a  judgment  for  the  defendant.*  And  at  com- 
mon law,  judgment  non  obstante  can  be  given  only  for  the 
plaintiff  ;  the  corresponding  remedy  for  the  defendant  being 
to  move  for  arrest  of  judgment.^  But  under  the  modern 
practice,  it  would  seem  that  a  motion  for  judgment  irre- 
spective of  the  verdict  is  available  to  the  defendant  also  ;  ^  as 
when  the  complaint  does  not  state  a  cause  of  action,  or  when 
the  issue  tried  is  upon  an  immaterial  matter.  Upon  such 
motion,  the  court  can  look  only  to  the  pleadings ;  an  admission 
made  during  the  trial  can  not  be  regarded." 

522.  Arrest  of  Judgment. — Where  there  4s    error,  ap- 

^  Ey.  Co.  V.  Ireland,  19  Kan.  405.  Schermerhorn  v.  Schermerhom,  5 

2MerriU  v.  Elliott,  55  111.  App.  Wend.  513;   Buckingham  v.   Mc- 

34 ;  Hess  v.  Rosenthal,  55  111.  App.  Cracken,  2  O.  S.  287. 

324  ;  Ry.  Co.  v.  Byrum,  153111. 131.  «  Tootle  v.  CUfton,  22  O.  S.  247. 

3 Grand  Lodge,  etc.,  v.  Jesse,  50  Cf.  Trimble  v.  Doty,  16  O.  S.  118, 

111.  App.  101.  128. 

*  Steph.  PI.  186.  T  Challen  v.  Cincinnati,  40  O.  S. 

6  Smith  V.  Smith,  4  Wend.  468  ;  113. 


§523  APPLICATION  OF  PEINCIPLES.  554. 

pealing  on  the  face  of  the  record,  which  vitiates  the  pro- 
ceedings, the  unsuccessful  party  may,  after  verdict,  move 
in  arrest  of  judgment ;  that  is,  that  judgment  be  arrested 
or  withheld  because  of  such  error.  Generally  speaking, 
judgment  will  not  be  arrested  for  errors  of  mere  form,  but 
for  errors  of  substance  only  ;  and  these  must  arise  upon 
some  part  of  the  record.^ 

"  When  we  say  that  a  judgment  should  be  arrested  if  the 
petition  fails  to  show  a  cause  of  action,  we  speak  of  sub- 
stantial, and  not  of  formal  omissions.  The  latter  are  sup- 
plied by  intendment,  and  will  be  presumed,  after  verdict, 
to  have  been  proved.  But  when  the  petition  shows  that 
the  plaintiff  has  no  cause  of  action,  then  the  verdict  should 
be  treated  as  a  nullity."  ^ 

It  has  been  held  that  a  motion  in  arrest  of  judgment 
precludes  a  motion  for  a  Jiew  trial.^  But  such  holding  is 
illogical,  for  a  motion  in  arrest  is  based  upon  the  plead- 
ings, while  a  motion  for  a  new  trial  generally  brings  in  review 
matters  pertaining  to  the  trial. 

523.  Motion  for  New  Trial. — A  new  trial  is  a  re-trial, 
in  the  same  court,  of  an  issue  in  fact.  The  verdict  of  the 
jury,  the  report  of  the  referee,  or  the  decision  of  the  court, 
is  vacated,  and  the  cause  tried  de  novo.  A  new  trial  is  to 
be  .had  upon  motion  of  the  party  aggrieved,  setting  forth 
specifically  the  grounds  upon  which  he  assails  the  verdict,  or 
decision. 

The  grounds  upon  which  a  new  trial  may  be  granted  are 
specified  by  statute,  and  generally  embrace  the  following  : — 
Irregularity  in  the  proceedings  of  the  court,  jury,  or  prevail- 
ing party,  whereby  the  complaining  party  was  prevented 
from  having. a  fair  trial ;  misconduct  of  the  jury,  or  of  the 
prevailing  party ;  accident  or  surprise  that  could  not  be 
guarded  against ;  that  the  verdict  or  decision  is  contrary 
to  the  evidence,   or  to  the  law  ;  error  of  law  occurring  at 

iSteph.  PI.  185.  Cf.  Hamilton  v.  3 Gin.,  etc.,  Co.  v.  Case,  122  lai. 
Hamilton,  16  O.  S.  428.  310. 

2 Per  Bliss,  J.,  in  Saulsbury  v. 
Alexander,  50  Mo.  142,  144. 


555  INCIDENTS  OF  PROCEDURE.  g  524 

the  trial,  such  as  misdirection  to  the  jury,  or  the  admission 
or  rejection  of  evidence  contrary  to  law,  and  excepted  to  at 
the  time ;  newly  discovered  evidence,  material  to  the  party, 
and  which  he  could  not,  with  reasonable  diligence,  have  dis- 
covered and  produced  at  the  trial ;  and  that  the  damages 
awarded  are  excessive. 

The  office  of  a  motion  for  new  trial  is,  to  bring  before 
the  trial  court  its  rulings  upon  the  trial,  in  order  that  it 
may  review  them,  and  correct  such  as  are  found  to  be 
erroneous  and  to  the  prejudice  of  the  complaining  party ; 
and  it  may  also  present  some  questions — such  as  the  mis- 
take or  misconduct  of  the  jury — for  original  consideration 
by  the  court.  The  overruling  of  a  motion  for  new  trial  is 
a  proper  specification  in  an  assignment  of  errors  in  a 
reviewing  court ;  and,  as  a  general  rule,  an  error  proper  to 
be  included  in  such  motion  must  be  so  included,  to  be 
available  in  the  reviewing  court.^  Rulings  upon  the  plead- 
ings, since  they  do  not  pertain  to  the  trial,  are  not  proper  to 
be  assigned  as  grounds  for  a  new  trial.^ 

524.  Appellate  Procedure. — The  modes  for  obtaining  a 
review  heretofore  considered — to  wit,  by  motion  for  judg- 
ment non  obstante  veredicto,  b}-  motion  in  arrest  of  judgment, 
and  by  motion  for  new  trial — relate  to  a  review  by  the  court 
of  original  jurisdiction.  There  are,  in  addition,  two  modes 
of  review  in  a  higher  court  generally  provided  for  in  certain 
classes  of  cases  ;  and  these  are,  by  appeal,  and  by  proceed- 
ings in  error. 

An  appeal  is  the  removal  of  a  cause,  or  of  some  distinct 
part  thereof,  to  another  court  to  be  again  tried  in  that  court. 
Strictly  speaking,  the  proceeding  on  appeal  is  a  re-trial  of  the 
cause  or  part  thereof  appealed,  and  not  a  review  of  the  pro- 
ceedings in  the  lower   court. ^     The   right  of  appeal  arises 

1  Elliott's  App.  Proc.  347,  351,  831.  » In  some  of  the  states,  the  term 

2  Rogers  v.  Rogers,  78  Ga.  688;  "appeal"  is  applied  to  a  review  in 
Gibson  v.  Garreker,  82  Ga.  46  ;  error,  as  well  as  to  the  removal  of 
Patterson  v.  Scot.  Am.  Co.,  107  a  cause  for  re-trial  upon  the  issues. 
Ind.  497  ;  Irwin  v.  Smith,  72  Ind.  But  appeal  is  of  civil-law  origin, 
482  ;  Hunter  v.  Fitzmaurice,  102  and  removes  the  entire  cause,  for 
Ind.  449.  re-trial,  both  as  to  facts  and  law  ; 


§525  APPLICATION  OF  PRINCIPLES.  556 

only  from  constitutional  or  statutory  provision ;  and  being  a 
remedial  right,  it  may  be  modified  or  lost,  by  amendment  or 
appeal  of  the  statute  conferring  the  right. 

The  requisites  for  effecting  an  appeal  are,  generally,  the 
giving  of  notice  of  intention  to  appeal,  and  the  giving  of 
a  bond,  conditioned  that  the  appellant  will  prosecute  his 
appeal  without  delay,  and  will  perform  the  judgment  of  the 
appellate  court.  The  appeal  deprives  the  lower  court  of 
further  jurisdiction  as  to  the  matter  appealed,  and  vacates 
the  judgment,  and  also  the  rulings  on  demurrer  entered  by 
such  court;  ^  and,  if  the  lower  court  did  not  have  jurisdiction 
of  the  subject-matter  of  the  action,  the  higher  court  can  not 
acquire  jurisdiction  by  the  appeal. 

525.  Revie'ff  in  Error. — At  common  law,  the  unsuccess- 
ful party  might,  after  judgment,  sue  out  a  writ  of  error, 
which  was  a  writ  issued  by  a  court  of  competent  jurisdiction, 
directed  to  the  judges  of  the  court  in  which  the  judgment 
was  given,  commanding  them  to  send  the  record  to  another 
court,  in  order  that  some  alleged  error  of  law  therein  might 
be  corrected.^  Under  the  modern  procedure,  such  review 
for  the  correction  of  errora  of  law  is  obtained  by  an  action 
in  error,  commenced  by  the  filing  of  a  complaint  in  error 
in  the  reviewing  court,  and  the  service  of  a  summons  on 
the  defendant  in  error.  In  such  new  action,  the  reviewing 
court  is  limited  to  an  examination  of  matters  of  law,  appear- 
ing upon  the  face  of  the  record,  and  presented  to  the  court 
by  assignments  of  error  in  the  complaint  in  error. 

While  an  action  in  error  is  to  bring  before  the  reviewing 

while  a  proceeding  in  error  is  of  appeared  by  attorney  and  not  by 

common-law  origin,  and  is  for  a  guardian,    was    imder    age.      The 

review  of  questions  of  law  only,  writ  of  error  coram  nobis  was  not 

Wiscart  v.  Dauchy,  3  Dallas,  327.  intended    to    authorize  the   court 

1  Wanzer  v.  Self,  30  O.  S.  378.  to  review  and  revise  its  opinions, 

2  Steph,  PI.  201-207,  and  notes,  but  to  enable  it  to  recall  some  ad- 
There  was  also  a  writ  of  error  judication  made  in  ignorance  of 
coram  nobis  or  coram  vobis,  which  some  fact  which,  if  before  the  court, 
was  to  bring  into  the  issue  some  would  have  prevented  the  judg- 
omitted  matter  of  fact,  which  af-  ment,  and  which,  without  fault  of 
fects  the  vahdity  of  the  judgment ;  the  party,  was  not  presented, 
such  as   that  the  defendant  who  Freeman  on  Judgments,  94. 


557  INCIDENTS  OF  PROCEDURE.  g526 

court  only  alleged  mistakes  in  law,  the  sufficiency  of  the 
evidence  may  be  made  the  subject  of  review,  by  motion  for 
new  trial,  exception  to  the  overruling  thereof,  and  a  bill  of 
exceptions.  In  this  way,  the  evidence  is  brought  into  the 
record,  and  the  question  of  its  sufficiency  is  presented  by 
the  alleged  error  of  law  in  overruling  the  motion  for  new 
trial. 1 

An  action  in  error  differs  from  appeal,  in  that  the  former 
is  a  new  proceeding,^  while  the  latter  is  but  a  continuation 
of  the  same  case  from  one  court  to  another.^  This  distinc- 
tion will  account  for  the  difference  in  some  of  the  incidents 
of  the  two  proceedings.  In  case  of  appeal,  the  parties  are 
brought  into  the  appellate  court  by  the  appeal,  while  in  a 
proceeding  in  error,  service  of  process  is  necessary,  unless 
that  be  waived  and  appearance  voluntarily  entered  ;  appeal 
vacates  or  suspends  the  judgment  below,  while  an  action  in 
eiTor  does  not,  and  execution  may  issue  thereon,  unless  a 
stay  is  obtained  by  the  giving  of  a  supersedeas  bond  ;  on 
appeal  proper,  the  cause  is  tried  de  novo,  and  judgment 
rendered  without  regard  to  the  questions  considered  or  the 
judgment  rendered  below,*  while  a  court  of  errors  ordinarily 
either  affirms  or  reverses  the  judgment  below,  though  it  may 
sometimes  enter  such  judgment  as  it  finds  should  have  been 
entered  below,  and  sometimes  it  may  remand  the  cause  to  the 
inferior  court  for  further  proceedings. 

526.  Error  must  be  Prejndicial. — Not  all  errors  are 
available  to  the  party  against  whom  they  are  committed.  To 
make  an  erroneous  decision  or  ruling  so  available,  it  must 
(1)  be  prejudicial  to  the  party  complaining,  (2)  he  must 
object  to  it  in  the  trial  court,  and  (3)  he  must,  as  a  rule,  save 
the  question  by  an  exception. 

Where  a  wrong  decision  denies  or  impairs  a  remedial  right, 
or  a  meritorious  defense,  it  is,  with  few  exceptions,  pre- 
judicial ;  but  where  it  affects  only  matters  of  procedure,  it  is 
sometimes,  though  not  always,  a  harmless  error.  The  court 
will  not  presume  prejudice  from  the  fact  of  error,  nor  is   it 

^  Freeman  on  Judgments,  347.  '  Ante,  524. 

a  Bank  v.  Jenkins,  104  111.  143.  *  Seymour  v.  Shea,  62  Iowa,  708i 


§  527  APPLICATION  OF  PRINCIPLES.  558 

requisite  that  actual  injury  be  certainly  shown ;  it  is  suffi- 
cient if  it  appear,  from  the  record,  that  the  error  complained 
of  was  probably  prejudicial.  Where  there  is  error  in  matters 
of  procedure,  but  a  right  result  is  nevertheless  reached,  the 
error  is  harmless.^  For  example,  if  the  court  should  proceed 
upon  its  own  knowledge  of  a  foreign  law,  instead  of  requir- 
ing proof  thereof,  the  error  has  been  held  not  to  be  prejudicial, 
unless  it  appear  that  the  court  was  mistaken  as  to  the  foreign 
law.2  And  where  the  trial  judge  submitted  the  construction 
of  a  written  instrument  to  the  jury,  and  the  jury  placed 
the  true  construction  upon  it,  the  error  was  held  to  be  harm- 
less.* But  there  must  be  exceptions  to  the  rule  that  a  right 
result  renders  error  in  procedure  harmless.  It  has  been 
suggested  that  to  deny  a  trial  by  jury,  in  a  case  where  the 
parties  are  entitled  to  a  jury  trial,  would  be  available  error, 
even  though  it  appear  that  a  right  conclusion  was  reached.* 

527.  Objections  and  Exceptions. — It  is  not  enough  that 
error  be  prejudicial  to  the  party  complaining ;  he  must,  to 
make  it  available,  object  to  the  erroneous  ruling  or  decision, 
in  the  trial  court,  and  he  must  except  thereto. 

The  office  of  an  objection  is,  (1)  to  present  to  the  trial 
court  the  specific  grounds  upon  which  the  party  asks  a  ruling 
in  his  favor,  or  opposes  one  that  is  against  him ;  and  (2)  to 
present  to  the  reviewing  court  the  precise  points  upon  which 
the  lower  court  ruled. 

The  office  of  an  exception  is,,  to  give  notice  to  the  trial 
court  and  to  the  adverse  party,  of  the  intention  of  the  ex- 
ceptor to  reserve  the  question  made  by  the  ruling  and  the 
objection,  for  future  consideration  in  a  reviewing  court.  If 
an  objection  is  not  followed  by  an  exception,  the  objection  is 
waived,  and  the  ruling  objected  to  can  not  be  made  the  sub- 
ject of  review.  This  requirement  of  objection  and  exception, 
to  lay  the  ground  for  complaint  in  error,  is  but  common 
fairness  to    the  court  and  to  the  adverse  party  ;  it  accent- 


1  Logansport  v.   Shirk,  129  Ind.  «  State  v.  Rood,  12  Vt.  396. 

352  ;  Martineau  v,  Steele,  14  Wis.  ^  Martineau  v.    Steele,    14  Wis. 

272  ;  Coal  Co.  v.  Schaefer,  135  lU.  272. 

210.  *  Elliott's  App.  Proc.  634. 


559  INCIDENTS  OF  PROCEDURE.  §  528 

uates  the  importance  of  the  decision  objected  to,  and  invites 
a  second  thought  as  to  whether  it  may  be  erroneous. 

Where  the  sustaining  of  an  objection  to  a  question  asked  a 
witness  is  assigned  as  error,  the  record  should  disclose  what 
answer  was  expected ;  otherwise,  it  will  not  appear  whetlier 
the  exclusion,  though  erroneous,  was  prejudicial.^  And,  for 
reasons  heretofore  stated,  such  disclosure  should  be  made 
in  the  trial  court,  at  the  time  the  exception  is  taken.  But 
where  a  witness  is  rejected  as  incompetent  to  testify^  the 
party  need  not  state  what  he  expected  to  prove  by  him  ;  for 
the  ground  of  exclusion  is  wholly  irrespective  of  the  subject- 
matter  of  his  testimony,  and  if  erroneous,  is  prejudicial.^ 

Some  rulings,  to  be  reviewable  in  a  court  of  error,  must 
first  be  presented  to  the  trial  court  for  review.  This  is 
generally  done  by  a  motion  for  a  new  trial.^ 

528.  Bill  of  Exceptions. — The  examination  in  a  court 
of  error  is  limited  to  matters  that  appear  in  the  record  of 
the  lower  court.  Therefore,  to  obtain  consideration  of  any 
ruling  of  the  lower  court,  it  must  not  only  be  duly  excepted 
to,  and  assigned  as  error,  but  the  ruling  itself  must  appear 
in  the  record  of  the  lower  court,  filed  with  the  complaint  in 
error;  it  can  be  brought  to  the  attention  of  the  reviewing 
court  in  no  other  way. 

Some  matters — such  as  the  pleadings,  return  of  summons, 
rulings  on  demurrers,  verdicts,  judgments  and  decrees — 
always  and  necessarily  appear  upon  the  record ;  but  some 
parts  of  the  procedure,  particularly  the  incidents  of  the  trial, 
do  not  enter  into  the  record  proper,  and  when  any  of  these 
extrinsic  matters  are  to  be  presented  to  a  court  of  error, 
they  must,  for  that  purpose,  be  brought  upon  the  record  by 
a  bill  of  exceptions. 

A  bill  of  exceptions  is  a  statement  in  writing,  signed  by 
the  judge  who  tried  the  cause,  setting  forth  the  rulings  and 
decisions  excepted  to,  and  sometimes  such  collateral  facts  as 

iBolen  V.   State,  26  O.   S.   371;  cross-examination.     Martin  v.  El- 
Bean  V.  Green,  33  O.  S.  444 ;  Gan-  den,  33  O.  S.  282. 
dolfo  V.  State,  11  O.  S.   114.     But        2Wolf  v.  Powner,  30  O.  S.  473. 
this  rule  does  not  ordinarily  apply  Cf.  Hollister  v.  Reznor,  9  O.  S.  1. 
to    the  exclusion  of  questions  on        ^^nte,  533. 


§  529  APPUCATION  OF  PEINCIPLES.  560 

are  necessary  to  disclose  the  materiality  of  the  matters 
excepted  to.  The  sole  office  of  a  bill  of  exceptions  is,  to 
brino-  upon  the  record,  and  make  part  thereof,'  extrinsic 
matters  that  would  not  otherwise  enter  into  the  record,  in 
order  that  these  may  be  exhibited  to  a  reviewing  court.' 
Parts  of  the  procedure  that  do  not  properly  belong  to  the 
record,  can  not  be  brought  to  the  attention  of  the  reviewing 
court  by  putting  them  in  the  record  without  a  bill  of  excep- 
tions. For  example,  the  charge  of  the  court  to  the  jury  is 
not  properly  a  part  of  the  record  in  a  case,  and  exceptions 
thereto  can  not  be  made  available  by  simply  spreading  the 
charge  and  the  exceptions  upon  the  record.  They  must  be 
set  out  in  a  bill  of  exceptions,  and  this  made  a  part  of  the 
record  by  order  of  the  court  j  but  the  bill  need  not  be  copied 
into  the  record-books. 

529.  Entries  Nunc  pro  Tunc. — It  sometimes  happens 
that  an  order  made,  or  a  judgment  rendered,  or  other  thing 
done  in  the  progress  of  a  case,  and  that  should  be  entered 
upon  the  record,  is  inadvertently  omitted  therefrom.  To 
cure  such  omission,  the  court  may,  upon  motion,  make  what 
is  called  an  entry  7iuno  pro  tunc  ;  that  is,  the  court  may  cause 
to  be  made  noWi  an  entry  that  shall  have  the  same  legal  force 
and  effect  as  if  made  at  the  time  when  it  should  have  been 
made.  The  power  of  the  court  to  correct  such  omissions  in 
this  way  rests  upon  the  maxim  actus  curice  reminem  gravabit 
— an  act  of  the  court  shall  prejudice  no  one. 

This  incident  of  procedure  is  corrective,  and  not  creative. 
It  is  to  supply  omitted  evidence  of  an  existing  fact,  and  not 
to  supply  an  omitted  fact ;  the  theory  being  that  the  ruling 
involved  was  actually  made,  but  not  entered  of  record.  The 
ruling  of  a  court  is  a  judicial  act ;  the  entry^hereof  is  purely 
ministerial,  and  may  be  done  at  any  time  without  affecting 
the  validity  of  the  judicial  act.  In  such  case,  the  thing  then 
done  may  be  now  recorded,  and  with  the  same  effect,  inter 
partes,  as  if  then  recorded.  The  making  of  entries  nunc  pro 
tunc  is  to  prevent  injustice  to  a  party ;  and  though  the 
exercise  of  this  power  rests  in  the  discretion  of  the  court,  it 

»  Young  V.  Martin,  8  Wall.  354,  357  ;  Gavin  v.  State,  56  Ind.  51. 


561 


INCIDENTS  OF  PROCEDURE. 


§629 


should  not  be  withheld  where  tlie  facts  show  a  proper 
occasion  for  it. 

Such  order  is  to  be  obtained  upon  motion,  and  notice  to 
the  adverse  party.^  It  is  a  summary  proceeding,  and  not  a 
trial,  though,  of  course,  the  application  must  be  sustained 
by  evidence.  Parol  evidence  is  generally  held  admissible, 
though  it  is  doubtful  if,  by  itself,  such  evidence  is  sufficient.* 
Some  entry  or  memorandum,  made  by  the  court,  and  author- 
ized or  required  by  law,  is  the  evidence  generally  relied 
upon. 

The  period  within  which  an  entry  nunc  pro  tune  may  be 
made,  seems  not  to  be  limited.^  Such  entries  being  in  further- 
ance of  justice,  will  not  be  made  where  third  persons  have 
acquired  rights,  without  notice  of  the  facts  omitted  from  the 
record.* 


'  EUis   V.    KeUer,    82    Ind.   524 ; 
Gray  v.  Robinson,  90  Ind.  527. 

2  Conway  v.  Day,  92  Ind,  422  ; 
Fletcher  v.  Coombs,  58  Mo.  430  ; 
Freeman  on  Judgm.  63  ;  Elliott's 
App.  Proc.  213.  Cf.  Metcalf  v. 
Metcalf,  19  Ala.  319 ;  Hegeler  v. 
HenckeU,  27  Cal.  491. 

36 


8  Fuller  V.  Stebbins,  49  Iowa,  376  ; 
Donne  v.  Lewis,  11  Ves.  601. 

*  Galpin  v.  Fishburne,  3  McCord, 
22;  s.  c.  15  Am.  Dec.  614.  Cf. 
Hays  V,  Miller,  1  Wash.  Ter.  163 ; 
Jordan  v.  Petty,  5  Fla.  326  ;  McCor. 
mick  V.  Wheeler,  36  III.  114  ;  Gra- 
ham  V.  Lynn,  4  B.  Mon.  18 ;  Ack% 
len  V.  Acklen,  45  Ala.  609. 


INDEX. 

27ic  references  are  to  sectiwii, 

A. 

ABATEMENT— 
plea  in,  58. 
answer  in,  237. 
facts  in,  are  new  matter,  386. 

ABBREVIATIONS— 

of  name,  may  be  used,  173. 

ACCIDENT— 

does  not  excuse  performance  of  contract,  436, 

ACCOUNT— 

meaning  of,  472. 

action  on,  with  forms  of  complaint,  472. 

ACCOUNT  STATED— 
meaning  of,  473. 
action  on,  with  form  of  complaint,  473,  474. 

ACQUIESCENCE  OF  INJURED  PARTY— 
generally  defeats  recovery,  432,  433. 
fighting  by  agreement  does  not,  433. 

ACTIONS— 

defined,  25,  and  note  3. 

ultimate  object  of,  34,  35. 

when  considered  as  pending,  512. 

common-law  classification,  87,  471. 

real  and  mixed,  88. 

ejectment,  89-91. 

for  mesne  profits,  92. 

in  form  ex  contractu,  93-99. 

in  form  ex  delicto,  100-107. 

civil  action  of  the  reformed  system,  162,  471. 

legal  and  equitable  combined,  163. 

to  reform  and  to  enforce  an  instrument,  212-214. 

563 


564  INDEX. 

The  references  are  to  sections. 

ACTIONS  (continued)— 

for  debt,  and  to  enforce  lien,  215,  216. 

local  and  transitory,  128,  468. 

on  account,  472. 

on  account  stated,  473,  474. 

for  services,  475. 

growing  out  of  sales  of  property,  476. 

on  negotiable  paper,  477,  478. 

on  judgments,  479,  486. 

for  breach  of  promise  to  marry,  487. 

against  common  carrier,  488,  489. 

in  replevin,  491,  492. 

for  libel  and  slander,  493-496. 

for  malicious  prosecution,  497-499. 

for  negligence,  500-503. 

for  specific  performance,  504. 

by  creditor's  bill,  505,  506. 

on  note  and  mortgage,  507,  508. 

to  reform  instnunent,  509,  510. 

ACTION  ON  THE  CASE— 
See  Trespass  on  the  Case. 

AD  DAMNUM— 

meaning  and  use  of,  424. 

what  may  be  recovered  under,  434,  425. 

ADMINISTRATORS— 

See  Executors  and  Administrators. 

ADOPTING  STATEMENTS  IN  ANOTHER  CAUSE— 
incorporated  by  apt  words  of  reference,  208. 

ADVERSE  POSSESSION— 

confers  title  under  statute  of  limitations,  382. 
may  be  proved  under  a  denial  of  title,  382. 

AFFIRMATIVE  AVERMENTS— 
two  do  not  make  an  issue,  135. 
must  be  an  aflBrmative  and  a  negative,  360. 
negative  averment  must  be  traversed  by  an  affirmative,  360. 
two  afiirmatives,  or  two  negatives,  is  fault  of  form,  360. 

AGENCY— 

how  pleaded,  346. 

act  of  agent,  how  pleaded,  347,  378. 

when  independent  agency  breaks  causal  connection,  114,  407. 

AGGRAVATION— 

matter  in,  not  traversable,  121,  192. 


INDEX.  565 

Tlie,  references  are  to  sections. 

AGGRAVATION  (continued)— 

less  particularity  in  statement  of,  356. 

AGREED  CASE— 

nature  and  object  of,  513,  514. 

AIDER— 

of  defects  by  pleading  over,  84. 
by  verdict,  84. 

ALIAS  DICTUS— 

when  may  be  used,  171. 

ALLEGATIONS— 

what  admitted  by  failure  to  deny,  234.  : 

should  be  absolute  in  form,  135. 

purpose  of,  determines  whether  of  law  or  of  fact,  346. 

of  law  may  contain  fact,  346. 

general  must  yield  to  specific,  346,  351. 

include  reasonable  inferences,  352. 

refer  to  time  of  commencement  of  action,  353. 

technical  words  have  technical  meaning,  352. 

to  be  in  issuable  form,  356,  357. 

not  confined  to  matters  of  personal  cognizance,  356. 

not  to  be  by  way  of  recital,  or  of  inference,  357. 

not  to  be  argumentative  in  form,  358,  359. 

two  affirmatives,  or  two  negatives,  do  not  make  a  good  issue,  360. 

ALTERNATIVE  RELIEF— 

prayer  of  complaint  may  be  for,  319. 

ALTERNATIVE  STATEMENT— 
bad  for  uncertainty,  131. 

AMBIGUITY— 

rvile  against,  134. 
how  corrected,  353. 

AMENDMENTS— 

origin  and  nature  of,  309,  310. 
of  right,  and  upon  leave,  311,  312. 
what  may  be  done  by,  313-315,  424. 
after  trial,  316. 
excessive  verdict  cured  by,  425. 

ANIMALS— 

liabiUty  for  trespass  by,  200,  and  note  8, 

ANNOYANCES— 

some  may  be  abated  without  action,  24,  note  1. 


566  INDEX. 

The  references  are  to  aeetiona, 

ANNOYANCES  (continued)— 
some  are  not  actionable,  393. 

ANSWER— 

in  equity,  158. 

to  be  entitled,  228. 

to  be  subscribed,  223. 

kinds  of,  stated,  227,  228. 

in  abatement,  237. 

to  the  jurisdiction,  237. 

of  denial,  228-234. 

of  new  matter  in  bar,  238-245. 

APPEAI^ 

nature  and  efifect  of,  524. 
distinguished  from  action  in  error,  626. 

APPEARANCE— 

jurisdiction  of  defendant  acquired  by,  483. 
may  be  general  or  qualified,  463. 

ARGUMENTATIVE  PLEADING— 
a  defect  of  form,  135,  284,  359. 
subject  to  motion,  284,  359. 
illustrative  cases,  358,  359. 

ARREST  OF  JUDGMENT— 

groxmd  for,  and  how  obtained,  522. 

AS— 

should  be  used  to  designate  representative  capacity,  ITL 

ASSAULT  AND  BATTERY— 
when  actionable,  392. 

ASSIGNMENT— 

of  part  of  an  entire  demand,  450. 

when  right  arising  from  tort  assignable,  458. 

ASSUMPSIT— 

action  of,  95-98. 

general  and  special,  96. 

fiction  of  a  promise  in,  95,  419. 

general  issue  in,  96. 

judgment  in,  96. 

the  common  counts  in,  97,  98. 

debt  and  covenant  compared  with,  109. 

AVERMENTS— 
See  Allegations. 


INDEX.  56^ 


3^  references  are  to  sections. 
B, 

BILL  IN  EQUITY— 
formal  parts  of,  149. 
the  essentials  of,  150. 
kinds  of,  151-155. 

BILLS  AND  NOTES— 

See  Negotiable  Instruments. 

BILLS  OF  EXCEPTIONS— 
natiire  and  purpose  of,  538. 

BREACH  OF  CONTRACT— 
actions  for,  472-489. 

BREACH  OF  PROMISE  TO  MARRY— 
action  for,  with  form  of  complaint,  487. 

BREACH  OF  WARRANTY - 
distinguished  from  deceit,  205. 

c. 

CAPACITY  OF  PARTIES  TO  ACTION— 
must  appear,  where,  and  how,  177. 
representative  capacity,  177. 
corporate  capacity,  178,  179. 
partnership  capacity,  180. 
want  of,  how  asserted,  180. 

CARRIERS— 

See  Common  Carriers. 

CAUSAL  CONNECTION— 

requisite  between  deUct  and  injury,  407. 
independent  agency  breaks,  407. 

CAUSE  OF  ACTION— 
defined,  30,  and  note  1. 
elements  of,  33,  182. 

distinguished  from  right  of  action,  31,  and  note  2, 
logical  formula  criticised,  35,  note  1. 
statement  of  in  complaint,  182. 
when  only  delict  to  be  stated,  183. 
legal  and  equitable,  how  stated,  188. 
collateral  facts  to  be  stated,  189-191. 
duplicate  statement  of  one  right,  206-209. 
prayer  for  relief  not  part  of,  219. 
novelty  of,  no  ground  of  objection,  389. 


568  INDEX. 

The  references  are  to  sections. 

CERTAINTY  IN  PLEADING— 
degrees  of,  126,  132. 
as  to  parties,  127. 
as  to  place,  128. 
as  to  time,  129. 
as  to  subject  of  action,  130,  131. 

CHANCERY— 
See  Equity. 

CHARACTER— 
See  Reputation. 

CHATTELS— 

See  Sales  of  Personalty. 

CIVIL  DIVISIONS— 
See  Judicial  Notice. 

CIVIL  LAW  PROCEDURE— 

developed  from  edictal  law,  40. 
summoning  the  defendant,  41. 
the  pleadings,  43,  45. 
modes  of  trial,  42. 
conduct  of  trial,  44,  45. 

CLASSIFICATION— 
of  actions,  87,  471. 

CODE  PLEADING— 

the  system  distinguished,  12,  165,  166, 
historical  outline  of,  159-166. 
where  adopted,  166,  note  1. 

COLLATERAL  FACTS— 

what,  and  when  to  be  stated,  189-191. 

COLOR— 

See  Defense  of  New  Matter, 
plea  in  avoidance  must  give,  71. 

COMITY,  INTER-STATE— 

as  to  judicial  proceedings,  481,  482. 

how  record  of  judgment  authenticated  and  proved,  489k 

COMMENCEMENT  OF  ACTIONS— 

by  amendment  asserting  new  cause,  310. 
when  deemed  commenced,  512. 
how  long  deemed  pending,  512. 

COMMON  CARRIERS— 
who  are,  488,  489. 


INDEX.  569 

T%e  references  are  to  sections. 

COMMON  CARRIERS  (continued)— 
obligations  of,  488,  489. 
actions  against,  488,  489. 

COMMON  COUNTS— 

modifications  of  assumpsit,  97. 

indebitatus  assumsit,  97. 

quantum  meruit,  97,  448. 

quantum  valebant,  98. 

insimul  computasset,  98. 

use  of,  in  reformed  procedure,  369. 

COMMON-LAW  PROCEDURE— 
its  early  development,  46-50. 
earliest  forms  of  action,  108. 

COMPLAINT— 

its  formal  parts,  169. 

general  requisites  of,  177-193,  322. 

the  court  and  the  county,  170. 

names  of  parties,  171-174. 

the  word  "  complaint,"  or  "  petition,**  178w 

to  be  subscribed,  223. 

tabular  synopsis  of  its  parts,  226. 

what  to  be  stated  in,  322-340. 

what  not  to  be  stated  in,  341-349. 

short  forms  of,  367,  368. 

CONCLUSION  OF  PLEADINGS— 
pleas  by  way  of  traverse,  62. 
pleas  in  confession  and  avoidance,  63. 
plea  of  nul  tiel  record,  62. 

CONCLUSIONS  OF  FACT— 

how  distinguished  from  law,  346. 

purpose  of  averment  may  determine  whether  of  fact  or  of  law,  346. 

ultimate,  to  be  found,  not  alleged,  346. 

overcome  by  specific  statement,  346. 

CONCLUSIONS  OF  LAW— 
not  to  be  alleged,  343-346. 
may  contain  averment  of  fact,  346. 
purpose  of  averment  determines  its  nature,  346. 
remedy  for  pleading,  346. 

CONDITIONS  PRECEDENT— 

when  performance  to  be  alleged,  189,  329.  344,  873. 

how  pleaded  at  common  law,  372. 

how  vmder  codes,  372,  373. 

how  general  averment  traversed,  373. 


570  .  INDEX. 

Tlie  references  are  to  sections. 

CONDITIONS  SUBSEQUENT— 
nature  and  office  of,  329. 
constitute  matter  of  defense,  329,  348. 
plaintiff  not  to  plead  performance  of,  348. 

CONFESSION  AND  AVOIDANCE— 
pleas  in,  69. 
answer  in,  240. 
must  give  color,  71,  235,  240. 
'  qualifying  words  vitiate,  240. 

CONFLICT  OF  LAWS— 
See  Lex. 

CONSENT  OF  INJURED  PARTY— 
defeats  recovery,  432,  433. 
fighting  by  agreement  does  not,  433. 

CONSIDERATION— 

when  must  be  aUeged,  327,  328. 
how  want  of,  to  be  asserted,  328,  386. 
qualifying  words  vitiate,  240. 

CONSISTENCY— 

See  Inconsistent  Defenses. 

CONSTRUCTION  OF  PLEADINGS— 
to  be  liberally  construed,  351-353. 
meaning  of  this  canon,  351,  and  note  2. 
technical  words  to  have  technical  meaning,  353. 
surplusage  to  be  disregarded,  352. 
general  theory  of  pleading  must  be  regarded,  354. 

CONTINUOUS  AND  RECURRING  INJURIES— 

whether  reparable  by  one  action  or  by  several,  447, 

CONTRACTS— 

when  governed  by  lex  loci  contractus,  402. 
performance  of,  governed  by  lex  loci  solutionis,  403. 
can  not  be  made  debtor  by,  against  will,  421. 
privity  in,  415^17. 

CONTRIBUTORY  NEGLIGENCE— 
meaning  and  requisites  of,  435. 
manner  of  pleading,  503. 
defeats  recovery  for  injury,  435. 
but  not  if  defendant's  act  was  willful,  435. 
not  to  be  alleged  by  plaintiff,  348,  502. 
exception  to  this  rule,  503. 
attempt  to  rescue  one  from  impending  peril,  435. 

CONVERSION— 

what  constitutes,  105. 


INDEX.  57X 

The  references  are  to  sections. 

CONVERSION  (continued)— 
when  demand  requisite,  395. 

COPIES— 

of  instrument  sued  on,  to  be  attached,  370,  371. 

how  to  be  identified,  371. 

of  lost  pleadings  and  writs,  515. 

CORPORATION— 

when  party,  capacity  must  appear,  178,  179. 

corporate  existence,  how  alleged,  178,  179. 

domestic,  judicial  notice  of,  178. 

when  municipal  corporations  exempt  from  suit,  431,  and  note  1. 

COUNTER-CLAIMS— 

defined  and  classified,  249. 

how  pleaded,  260. 

distinguished  from  defense  of  new  matter,  248. 

arising  out  of  contract  sued  on,  250. 

arising  out  of  same  transaction,  251. 

connected  with  subject  of  action,  252. 

may  be  asserted  against  the  State,  256,  431. 

may  be  asserted  in  reply,  270. 

COURTS— 
defined,  25. 
why  established  and  maintained,  2,  and  note  1. 

COVENANT— 
action  of,  94. 
general  issue  in,  94. 
judgment  in,  94. 
assimipsit  and  debt  compared  with,  108,  109. 

CREDITOR'S  BILL— 

action  by,  to  reach  equitable  interests,  505,  506. 

CROSS-COMPLAINT— 
nature  and  uses  of,  253. 
general  view  of  cross-demands,  256. 
how  cross-demands  pleaded,  260. 

CULPATORY  FACTS— 
defined,  3,  185. 

D. 


DAMAGES— 

every  legal  injury  imports,  391. 
kinds  of,  stated,  423. 


572  INDEX. 

77ic  references  are  to  secticms. 

DAMAGES  (continued)— 

general,  not  to  be  alleged,  424. 

special,  to  be  alleged,  189,  425. 

facts  in  aggravation,  when  to  be  alleged,  189,  437. 

when  damage  the  gist  of  the  action,  391,  426,  427. 

when  items  of,  to  be  stated,  427. 

duty  of  injured  party  to  prevent  increase  of,  433. 

whether  reparable  by  one  suit  or  by  several,  447. 

DAMNUM  ABSQUE  INJURIA— 

damnum  and  injuria  distinguished,  27,  28,  388, 
illustrative  oases,  390,  423. 

DARREIN  CONTINUANCE— 
plea  of,  73. 

DEATH— 

no  action  for  at  common  law,  392. 
statutory  right  of  action  for,  392. 

DEBT— 

action  of,  93. 

general  issue  in,  93. 

judgment  in,  93. 

assumpsit  and  covenant  compared  with,  108, 109. 

DECEIT— 

See  False  Representations. 

DECLARATION— 

its  parts  and  requisites,  56. 
form  of,  57. 

DECREES  IN  EQUITY— 

interlocutory  and  final,  146. 
execution  of,  147. 

DEFAULT— 

meaning  of,  278,  note  1. 
filing  motion  prevents,  288. 

DEFENSES— 

defined  and  classified,  61,  227,  228. 

defensive  facts,  evidential  or  operative,  380,  384. 

of  new  matter  must  give  color,  71,  235. 

legal  and  equitable,  combined,  163. 

of  denial,  229-234,  380. 

of  new  matter,  235-266,  380,  384-386. 

of  new  matter,  philosophy  of,  236. 

partial,  defined  and  distinguished,  241-243. 

dependent  on  prior  aflSrmative  relief,  257-269. 


INDEX.  1^ 


The  references  are  to  sections. 

DEFENSES  (continued)— 

dependent,  to  be  separately  stated,  359. 
joinder  of,  261-266. 

dilatory  and  in  bar  may  be  joined,  261. 
denial  and  new  matter  joinable,  262. 
should  not  anticipate  and  avoid,  348. 

DELICT— 

element  of  cause  of  action,  30-32. 
when  only  delict  to  be  stated,  183. 

DEMAND— 

when  a  prerequisite  to  remedial  right,  395. 
when  element  of  right  or  delict,  must  allege,  331, 

DEMURRER— 

nature  and  office  of,  35,  79. 

raises  an  issue  in  law,  but  not  of  law,  35. 

joinder  in,  80. 

general  and  special,  82,  290. 

admits  facts  well  pleaded,  83,  302. 

searches  the  record,  85,  303. 

effect  of  pleading  over,  84,  304,  305. 

effect  of  pleading  after  demuiTer  overruled,  306,  307. 

effect  of  amending  after  demurrer  sustained,  308. 

judgment  on,  86. 

to  bill  in  equity,  156. 

will  not  lie  for  misnomer,  174. 

grounds  of,  under  codes.  289. 

for  want  of  jurisdiction,  291,  292. 

for  insufficiency  of  facts,  293-295. 

when  several  causes  or  defenses  commingled,  394. 

to  assert  the  statute  of  limitations,  295. 

for  want  of  capacity  to  sue,  296. 

pendency  of  another  action,  297. 

for  defect  of  parties,  298. 

for  misjoinder  of  causes,  299,  300. 

for  misjoinder  of  parties,  301,  460. 

DEMURRER  TO  EVIDENCE— 
purpose  and  effect  of,  516. 

DENIALS— 

general  and  special,  distinguished,  36,  229-332,  881. 

distinguished  from  new  matter,  38,  338,  385. 

forms  of  general,  330. 

of  part  of  complaint,  233. 

failure  to  deny,  admits  what,  234. 

facts  anticipating  defense  need  no  denial,  349. 


574  INDEX. 

The  references  are  to  sections. 

DENIALS  (continued)— 

special,  distinguished  from  partial  defense,  243. 

with  new  matter,  in  one  defense,  65-67,  245,  354. 

defense  of  new  matter,  and  denial  joinable,  263. 

distinguished  from  negative  averment,  357. 

for  want  of  information,  364. 

what  may  be  proved  under,  881-383. 

fault  of  combining  evidential  facts  with,  381. 

DEPARTURE— 

what  is,  and  why  forbidden,  119,  273. 
remedy  by  demurrer,  273. 
distinguished  from  new  assignment,  273. 

DEPENDENT  DEFENSES— 

requiring  prior  equitable  relief,  257,  388. 
should  be  separately  stated,  259. 
examples  of,  257-259. 

DETINUE— 
action  of,  99. 
general  issue  in,  99. 
judgment  in,  99. 
trespass  and  trover  compared  with,  llOl 

DILATORY  ANSWERS— 

explained  and  classified,  227,  237. 

DILATORY  PLEAS— 

defined  and  classified,  58. 
odious  in  law,  59. 
how  pleaded,  59. 
judgments  thereon,  60. 

DISCLAIMER— 

when  a  proper  answer,  145. 

DISCONTINUANCE— 

meaning  and  effect  of,  73,  note  1. 

DISCOVERY— 

See  Bills  in  Equity. 

DISMISSAL  OF  ACTION— 

when  bar  to  another  action,  484. 

DISPARTING  A  RIGHT  OF  ACTION— 

effect  of  dividing  an  entire  demand,  443-448. 

DIVESTmVE  FACTS— 
defined,  3, 185. 


INDEX.  575 

TTie  references  are  to  sections. 

DIVORCE— 

domicile  of  party  affects  jurisdiction,  400. 

DOMICILE— 

defined,  and  distinguished  from  residence,  400. 
when  substantive  law  of,  to  govern,  400. 

DUPLICATE  STATEMENT  OF  ONE  RIGHT  OF  ACTION— 
rule  at  common  law,  124. 
rule  of  refoiTned  procedure,  206-209. 
allowed  in  exceptional  cases,  207. 

DUPLICITY— 

explained  and  illustrated,  122,  124,  285. 
remedy  for,  by  motion,  217,  285. 

DURESS— 

how  pleaded,  244. 

E. 

EJECTMENT— 
action  of,  89-91. 
how  title  alleged  in,  324. 

ELECTION  OF  REMEDIES— 

between  tort  and  contract,  111,  377,  448. 
may  be  shown  by  the  prayer,  221,  377. 
considerations  for  determining,  448. 

ENTRIES  NUNC  PRO  TUNC— 
nature  and  office  of,  529. 

EQUITABLE  DEFENSES— 
are  new  matter,  239,  386. 
combining  with  legal,  163. 

EQUITABLE  RELIEF— 

ancillary,  preventive,  and  final,  140. 

injury  irreparable  in  damages,  how  alleged,  190. 

EQUITY  PROCEDURE— 

based  on  civil-law  and  common-law  procedure,  142,  42,  and  note  3. 

arose  to  supply  defects  in  common-law  procedure,  137,  138. 

foundation  and  extent  of  the  jurisdiction-  139,  141. 

conduct  of  suit  in  equity,  143-146. 

pleadings  in,  148-158. 

decrees,  and  execution  of,  146,  147. 

EQUITY  OF  REDEMPTION— 
title  in  mortgagor,  139. 


§fg  INDEX. 

77i€  references  are  to  iections. 

ERROR,  PROCEEDINGS  IN— 
nature  and  effect  of,  525. 
distinguished  from  appeal,  525. 
error,  to  be  available,  must  be  prejudicial,  526. 

.ESTOPPEL— 
plea  in,  74. 

facts  in,  to  be  alleged,  if  opportunity,  386. 
former  judgment  must  be  pleaded,  486. 

EVIDENCE— 

to  elucidate  facts  in  issue,  379. 

must  agree  with  the  allegations,  379,  and  note  1, 

what  admissible  under  denial,  381-383. 

EVIDENTIAL  FACTS— 
defined,  3,  185. 

distinguished  from  operative,  185-187,  380,  38L 
not  to  be  pleaded,  347. 

but  may  be  good  against  demurrer,  347,  859,  384. 
fault  of  combining  with  a  denial,  381,  386. 

EXCEPTIONS— 

nature  and  object  of,  527. 

jnust  be  both  objection  and  exception,  527. 

EXCEPTIONS  AND  PROVISOS— 
explained  and  distinguished,  339. 
when  complaint  should  avoid  exception,  191,  339. 

EXECUTION,  V^RIT  OF— 
nature  and  office  of,  8. 

EXECUTORS  AND  ADMINISTRATORS— 
how  representative  capacity  alleged,  177. 
action  by,  for  wrongful  killing,  392. 

EXHIBITS— 

not,  ordinarily,  part  of  the  pleading,  471. 

EXTRAORDINARY  REMEDIES— 
enumerated  and  explained,  113. 

F. 

FACTS— 

classification  of,  3,  and  note  2,  185. 

jurisdictional  facts  to  be  alleged,  181. 

only  operative  facts  to  be  stated,  184,  188. 

operative  and  evidential  distinguished,  185-187,  380,  384. 


INDEX.  577 

TTie  references  are  to  sectiona, 

FACTS  (continued)— 

collateral,  what,  and  when  to  be  stated,  189-191. 

facts  judicially  noticed,  132,  341,  342. 

some  operative  facts  not  to  be  alleged,  348,  349. 

inoperative  facts  may  be  stricken  out,  349. 

to  be  stated  issuably,  356,  357. 

not  to  be  stated  from  personal  cognizance  alone,  356. 

not  to  be  stated  argumentatively,  358,  359. 

evidential  facts  may  be  good  on  demurrer,  347,  359. 

what  to  be  alleged  in  order  to  be  proved,  384-386. 

statement  of  inconsistent  evidential  facts,  384. 

how  to  determine  whether  facts  show  one  or  several  rights  of  actaoo* 

438. 
illustrative  cases,  439-442. 

FALSE  REPRESENTATIONS— 

how  alleged  in  complaint  or  answer,  244. 

confession  and  avoidance  in  reply  to  defense  of  fraud,  371,  873* 
defense  of  fraud,  how  pleaded,  and  how  met,  272,  386. 
defense  dependent  on  correction  of,  386. 

FEE-SIMPLE— 

how  pleaded,  378. 

FICTIONS  IN  PROCEDURE— 
origin  and  use  of,  50. 
in  assumpsit,  95. 
abolished  in  reformed  system,  160. 

FIGHTING  BY  AGREEMENT— 

does  not  defeat  recovery  by  injured  party,  433. 

FINDER  OF  LOST  PROPERTY— 
rights  of,  and  of  owner,  395. 

FORECLOSURE— 

of  mortgage,  with  form  of  complaint,  507,  508. 
parties  to  such  action,  454,  507,  508. 

FOREIGN  JUDGMENTS— 
See  Judgments. 

FOREIGN  LAWS— 

regarded  as  facts,  to  be  pleaded,  340. 
how  pleaded,  378. 

FORM  AND  SUBSTANCE— 
distinguished,  81,  321,  350. 
form  a  security  for  substance,  85,  276. 
when  form  disregai'ded,  85. 
formal  defects  may  be  waived,  287,  288. 
37 


578  INDEX. 

The  references  are  to  sections. 

FORMEDON— 
action  of,  88. 

FORMS— 

do  not  belong  to  the  science,  6,  note  1. 

early  adherence  to,  in  common-law  procedure,  47. 

of  allegation.  135,  136. 

FORMS  OF  ACTION— 

origin  and  meaning  of,  49. 
covenant  and  debt  the  earliest,  108. 
consequences  of  mistake  in,  112. 
abolished  in  code  pleading,  161,  471. 

FORMS  OF  PLEADING— 
original  writ,  53. 
declaration,  57. 
plea  in  avoidance,  72. 
replication,  77. 

demurrer  to  bill  in  equity,  156. 
motion  to  strike  from  files,  279. 
motion  to  strike  out,  282. 
motion  to  make  definite,  284. 
motion  to  separately  state  and  number,  286. 
demurrer  for  want  of  jurisdiction,  292. 
demurrer  for  insufficiency  of  facts,  294. 
demurrer  for  want  of  capacity  to  sue,  296. 
demurrer  for  pendency  of  another  action,  297. 
demurrer  for  defect  of  parties,  298. 
demurrer  for  misjoinder  of  causes,  300. 
answer  asserting  defense  of  statute  of  frauds,  335, 
answer  asserting  statute  of  limitations,  388. 
complaint  on  account,  472. 
complaint  on  account  stated,  474. 
complaint  for  services,  475. 
complaint  for  price  of  property  sold,  476. 
complaint  for  refusal  to  deliver  property,  476. 
complaint  on  promissory  note,  477. 
complaint  on  judgment,  486. 
complaint  for  breach  of  promise,  487. 
complaint  for  goods  lost  by  carrier,  488. 
complaint  in  replevin,  492. 
complaint  in  libel  and  slander,  495. 
complaint  in  malicious  prosecution,  498. 
answer  in  malicious  prosecution,  499. 
complaint  for  negligence,  503. 
complaint  for  specific  performance,  504. 
complaint  to  reach  equitable  assets,  506. 


INDEX.  579 


The  references  are  to  sections. 

FORMS  OF  PLEADING  (continued)— 
complaint  on  note  and  mortgage,  508. 
complaint  to  reform  instrument,  510. 

FRAUD— 

See  False  Representations. 

FRAUDS,  STATUTE  OF— 
See  Statute  of  Frauds. 

FRIVOLOUS  PLEADINGS— 

what  are,  and  how  attacked,  279. 

0. 

GENERAL  ASSUMPSIT— 
See  Assumpsit. 

GENERAL  DEMURRER— 
See  Demurrers. 

GENERAL  DENIALS— 
See  Denials. 

GENERAL  ISSUE— 
defined,  63. 
in  ejectment,  91. 
in  debt,  93. 
in  covenant,  94. 
in  assumpsit,  96. 
in  detinue,  99. 
in  trespass,  103. 
in  trespass  on  the  case,  104. 
in  trover,  105. 
in  replevin,  107. 
wide  range  of  evidence  under,  381. 

GIST  AND  INDUCEMENT— 

defined  and  distinguished,  192. 

degrees  of  particularity  in  statement  of,  356. 

when  damage  the  gist  of  action,  391,  426,  427. 

GIVING  COLOR— 

definition  and  office  of,  71,  235,  240. 

GOODS  SOLD  AND  DELIVERED— 
common  count  for,  98. 
action  for  price  of,  476. 


560  INDEX. 

The  references  are  to  sections. 
H. 

HABEAS  CORPUS— 
writ  of,  113. 

HEALTH— 

actions  for  injuries  to,  393. 

HIGHWAYS— 

how  existence  pleaded,  378. 

HYPOTHETICAL  PLEADING— 
not  allowed  generally,  357. 
exception  to  the  rule,  357. 


I. 


IDEM  SONANS— 

application  of  rule  as  to,  173. 

IMMUNITY  OF  STATE  FROM  SUIT— 

state  not  liable  to  action  by  individual,  431. 
personal  privilege,  and  may  be  waived,  431. 

this  immunity  transferred  to  municipal  and  quasi-municipal  cor- 
porations, 431. 
counter-claim  may  be  asserted  against,  256,  431. 

IMPLIED  PROMISE— 
origin  of  fiction  of,  95. 

distinguished  from  obUgations  arising  ex  lege,  376,  377,  and  notes, 
how  pleaded,  377,  419. 
election  of  remedies  in,  377. 

INCONSISTENCY  OF  DEFENSES— 
explained  and  illustrated,  261,  263. 

INCONSISTENT  DEFENSES— 
not  joinable,  261-266. 

INDEBITATUS  ASSUMSIT— 
See  Assumpsit. 

INDEMNIFIED  PARTY— 
when  may  sue,  428,  429. 

INDEPENDENT  CONTRACTOR— 

when  relieves  employer  from  liability,  436. 

INDUCEMENT— 

See  Gist  and  Inducement. 


INDEX.  581 

The  references  are  to  sections. 

INFANCY— 

defense  of,  is  new  matter,  238,  240. 
how  infant  to  sue,  171,  451. 

INFORMATION,  WANT  OF— 
See  Denials. 

INITIAL  LETTERS  OF  NAME— 
not  a  legal  name,  172. 
when  may  be  used,  172. 

INJURIES— 

public,  not  redressible  by  civil  action,  26, 

actual  loss  without  remedy,  27. 

irreparable,  conclusion  of  law,  344. 

consent  defeats  recovery  for,  432,  433. 

duty  of  injured  person  to  prevent  increase  of,  433. 

continuous  or  recurring,  447. 

INSIMUL  COMPUTASSET— 
See  Common  Counts. 

INTERPLEADER— 

remedy  in  equity,  152. 
statutory  remedy,  459. 

INTERVENING  VOLUNTARY  AGENCY— 
when  breaks  causal  connection,  407,  414,  436. 
independent  contractor,  436. 

INTERVENTION— 

when  party  may  intervene,  459,  and  note  1. 

INVESTITIVE  FACTS— 
defined,  3,  185. 

IRRELEVANT  MATTER— 
what  constitutes,  281. 
how  eliminated  from  pleading,  280-382. 

ISSUE— 

in  fact  and  in  law  defined  and  distinguished,  10,  38. 

is  no  issue  of  law,  35. 

introduced  by  common-law  procedure,  48. 

rules  for  production  of,  116-119. 

upon  traverse,  must  be  tendered,  117. 

when  well  tendered,  must  be  accepted,  118. 

rules  to  secure  materiality  of,  120,  121. 

rules  to  secure  singleness  in,  122-125. 

rules  to  secure  certainty  in,  126-132. 

rules  to  prevent  obscurity  in,  133-136. 


582  INDEX. 

TTie  references  are  to  sections, 

ISSUE  (continued)— 

several  in  one  action  under  code,  164. 
requires  affirmative  and  negative,  360. 
issues  formed  by  a  denial,  381-383. 

J. 

JEOFAILS— 

statutes  of,  309. 

JOINDER  IN  DEIVIUERER— 

necessary  to  form  issue  in  lavs',  80. 
want  of,  works  discontinuance,  80. 

JOINDER  IN  ISSUE— 
meaning  of,  62. 
when  required  of  party,  62,  80. 

JOINDER  OF  CAUSES  OF  ACTION— 
the  rule  at  common  law,  128,  124. 
the  rule  under  the  codes,  195-201. 
same  transaction,  196. 
same  subject  of  action,  197. 
necessary  averments,  198. 
causes  must  not  be  inconsistent,  199. 
must  each  affect  aU  the  parties,  200. 
legal  and  equitable  causes,  199. 
causes  ex  contractu  and  ea;  delicto,  199. 
illustrations  of  joinder,  199,  200. 
consequences  of  misjoinder,  201. 
misjoiner  asserted  by  demurrer  or  by  answer,  301, 
waived  if  not  so  asserted,  201. 
causes  joined,  to  be  separately  stated,  202. 

JOINDER  OF  DEFENSES— 
rules  as  to,  261-266. 
must  not  be  inconsistent,  161-163. 
dilatory  and  in  bar  joinable,  161. 
denial,  and  new  matter,  262. 
instances  of  joinder,  264-266. 

inconsistent,  stated  in  alternative,  263,  265,  note  1. 
remedy  for  improper  joinder,  266. 

JOINDER  OF  PARTIES  PLAINTIFF— 
See  Parties  to  Action. 

JOINDER  OF  PARTIES  DEFENDANT— 
See  Parties  to  Action. 


INDEX.  583 

The  references  are  to  sections. 

JOINT  RIGHT— 

demurrer  to  statement  of,  293. 

JUDGMENT— 
defined,  8. 

distinguished  from  order,  277. 

to  be  according  to  right  appearing  from  whole  record,  84, 89. 
to  follow  the  allegations  and  the  proofs,  879. 
on  dilatory  pleas,  60. 
interlocutory  or  final,  60. 
non  obstante  veredicto,  84,  531. 
respondeat  ouster,  85,  86. 
on  demurrer,  86. 
quod  eat  sine  die,  86. 
quod  recuperet,  60,  86. 
in  ejectment,  91. 
in  action  of  debt,  93. 
in  action  of  covenant,  94. 
in  action  of  assumpsit,  96. 
in  action  of  detinue,  99. 
in  trespass,  102. 
in  trespass  on  the  case,  104. 
in  trover,  and  effect  of,  105. 
in  replevin,  107. 
requisites  to  validity  of,  374. 
how  pleaded,  375,  485,  486. 
how  allegation  of,  traversed,  383. 
actions  on,  479,  480. 
as  ground  of  defense,  483,  484. 
inter-state  comity  concerning,  481,  483. 
arrest  of  judgment,  522. 

JUDEX— 

his  official  functions,  42. 

JUDICIAL  COGNIZANCE— 

facts  within,  not  to  be  stated,  132,  341. 
what  facts  judicially  noticed,  341,  343. 

JUDICIAL  POWER— 

defined  and  distinguished,  25. 

JURISDICTION— 

defined,  181,  291,  461. 
kinds  of,  and  essentials  to,  461. 
must  appear  from  complaint,  181. 
requisites  of,  291. 


584  INDEX. 

The  references  are  to  sections. 

JURISDICTION  (continued)— 

want  of,  how  asserted,  181,  291. 

plea  to  the,  58. 

general,  limited,  and  special,  181,  291,  374,  461. 

jurisdictional  facts  to  be  alleged,  181. 

answer  to  the,  237. 

form  of  demurrer  to,  292. 

how  pleaded,  374. 

when  domicile  affects,  400. 

when  depends  on  amount  claimed,  462,  469. 

of  the  subject-matter,  462. 

of  the  subject  of  the  action,  181,  468. 

subject  and  subject-matter  distinguished,  181,  note  1,  462,  note  2. 

of  parties,  and  how  acquired,  463,  464. 

must  be  invoked  by  proper  pleadings,  465-467. 

want  of  jurisdiction,  effect  of,  469. 

how  want  of,  taken  advantage  of,  470. 

JURISPRUDEN  CE— 
subjects  of,  2. 

JURY— 

original  constitution  of,  128. 

JUSTIFICATION— 

facts  in,  to  be  alleged,  385. 

L. 

LANDLORD  AND  TENANT— 

privity  between,  422. 

effect  of  assignment  or  sub-lease,  422. 

no  privity  where  one  wrongfully  enters  and  occupies,  422. 

LAW— 

ultimate  object  of,  1,  389. 

regards  infringement  of  right,  rather  than  pecuniary  loss,  27, 28,  391. 

divisions  of,  4. 

foreign,  to  be  pleaded,  340. 

municipal  ordinances,  340. 

not  to  be  alleged,  343-346. 

erroneous  allegation  of,  concludes  no  one,  346. 

what  law  to  govern  case.  399-404. 

extra-territorial  operation  of,  392,  402. 

LEGAL  CONCLUSIONS— 
See  Conclusions  of  Law. 


INDEX.  585 

The  references  are  to  sectums. 


LEX  DOMICILII— 

when  substantive  law  of,  governs,  400. 
domicile  and  residence  distinguished,  400. 

LEX  FORI— 

governs  the  remedy,  404. 

statute  of  limitations  governed  by,  388. 

LEX  LOCI  CONTRACTUS— 
when  to  be  alleged,  189. 
when  contracts  governed  by,  403. 

LEX  LOCI  REI  SIT^:— 

when  substantive  law  of  governs,  401. 

LEX  LOCI  SOLUTIONIS— 

performance  of  contract  governed  by,  403. 

LIBEL  AND  SLANDER— 

when  collateral  facts  to  be  alleged,  190. 
good  reputation  not  to  be  alleged,  348. 
justification  in,  to  be  aflfirmatively  pleaded,  385. 
action  for,  493-496. 

LIBERAL  CONSTRUCTION— 
See  Construction  of  Pleadings. 

LIEN— 

action  to  enforce,  and  for  debt,  215,  216. 

LIMITATION  OF  ACTIONS— 
See  Statute  of  Limitations. 

LIS  PENDENS— 

when  begins  and  ends,  512. 

LITIGATION— 
objects  of,  1. 

LOCAL  AND  TRANSITORY  ACTIONS— 
explained  and  distinguished,  128,  468. 

LOST  PLEADINGS  AND  WRITS— 
copies  may  be  substituted,  515. 

LOST  PROPERTY— 

rights  of  owner  and  of  finder,  395. 

M. 

MALICE— 

when  element  of  delict,  must  be  alleged,  380. 


686  INDEX. 

37i€  references  are  to  section** 

MALICIOUS  PROSECUTION— 
action  for,  497-499. 
complaint  in,  498. 
answer  in,  499. 

MALPRACTICE— 

See  Torts. 

MANDAMUS— 
remedy  by,  113. 

MANIFOLD  ALLEGATIONS— 
used  to  avoid  repetition,  204. 

MATERIALITY— 

of  allegation,  281. 

only  material  matter  traversable,  121, 

of  issue,  rules  to  secure,  120,  121. 

MAXIMS— 

Actio  non  datur  nan  damnificato,  27,  428. 

Actio  non  est  jus,  sed  medium  jus  persequendi,  25. 

Actor  sequitur  rei,  463. 

Actus  curice  neniinem  gravabit,  529. 

Conventio  vincit  legem,  388. 

Debitum  et  contractus  sunt  nullius  loci,  468. 

De  minimis  non  curat  lex,  391,  423. 

Executio  est  fructus  et  finis  actionis,  8. 

Ex  facto  oritur  jus,  2. 

Ignorantia  facti  excusat — ignorantia  legis  neminem  excusat,  432. 

In  factione  juris,  semper  subsistat  cequitas,  50. 

In  jure,  causa  proxima,  non  remota,  spectatur,  405. 

Jus  persequendi  judicio  quod  sibi  debetur,  24,  29. 

Lex  nil  frustra  facit,  16. 

Pacta  legem  faciunt  inter  partes,  20. 

Qui  facit  per  alium,  facit  per  se,  347,  378,  451, 

Res  judicata  pro  veritate  accepitiir,  483. 

Salus  populi  suprema  lex,  391,  423. 

Sic  utere  tuo  ut  alienum  non  Icedas,  426. 

Vbijus,  ibi  remedium,  13. 

Utile  per  inutile  non  vitiatur,  133,  352. 

Verba  relata  inesse  videntur,  203. 

Volenti  non  fit  injuria,  432,  433,  452,  502. 

MESNE  PROFITS— 
action  for,  92. 

MISJOINDER— 

of  causes  of  action,  effect  of,  123. 
remedy  for,  by  demurrer,  217,  285, 


INDEX.  587 


The  references  are  to  sections, 

MISJOINDER  (continued)— 

of  defenses,  remedy  by  motion,  366. 
of  parties,  remedy  for,  460. 

MISNOMER— 

consequences  of,  174. 
how  remedied,  174. 

MISREPRESENTATIONS— 
See  False  Representations. 

MISSPELLING— 
See  Idem  Sonans. 

MISTAKE— 

clerical,  in  pleading,  how  corrected,  174. 
defense  dependent  on  correction  of,  386. 
defense  of,  can  not  be  proved  under  denial,  386. 
payment  tmder  mistake  of  fact,  432. 

MITIGATION  OF  DAMAGES— 
facts  in,  to  be  pleaded,  385. 

MONEY  HAD  AND  RECEIVED— 
action  of  assumpsit  for,  96,  419,  448. 

MORTGAGES— 

how  affected  by  law  of  sitiis,  401. 
action  to  foreclose,  507,  508. 

MOTIONS— 
defined,  277. 
should  be  entitled,  279. 
filing  of,  prevents  default,  288. 
several  matters  included  in  one,  277. 
to  strike  from  files,  278,  279. 
form  of,  to  strike  from  files,  279. 
to  strike  out,  280-282,  349. 
form  of,  to  strike  out.  282, 
to  make  definite,  283,  284,  427. 
form  of,  to  make  definite,  284. 
to  separately  state  and  number,  285,  286. 
remedy  for  duplicity,  285. 
form  of,  to  separately  state  and  number,  286. 
for  new  trial,  523. 

MUNICIPA.L  CORPORATIONS— 

when  exempt  from  suit,  431,  and  note  7. 

when  quasi-municipal  corporations  exempt,  481. 


588  INDEX. 

Tb^  references  are  to  sections. 

N. 

NAMES  OF  PARTIES— 
part  of  title  of  cause,  171. 
alias  dictus,  171. 

if  name  vinknown,  how  designated,  171. 
partners,  corporation,  executor,  infant,  171. 
initial  letters  and  abbreviations,  172. 
designated  as  "  junior  "  or  "  senior,"  172. 
misspelling — idem  sonans,  17C. 
misnomer — consequences  and  remedy,  174. 

NEGATIVE  AVERMENTS— 

two  do  not  make  an  issue,  135. 

must  be  affirmative  and  negative,  360. 

two  affirmatives,  or  two  negatives,  fault  of  form,  360. 

NEGATIVE  PREGNANT— 

defined  and  illustrated,  3C1,  303. 

both  ambiguous  and  argumentative,  135,  361. 

illustrations  of,  344. 

remediable  by  motion  or  demurrer,  368. 

NEGLIGENCE— 
defined,  500,  501, 

contributory,  not  to  be  alleged  by  plaintiff,  348,  503. 
complaint  for,  503. 

NEGOTIABLE  INSTRUMENTS— 

indorsee  of,  protected  against  infimities,  271. 

how  originrl  infirmity  pleaded,  271. 

how  title  to,  pleaded,  325,  450. 

denial  that  plaintiff  is  bona  fide  holder,  343. 

when  lex  loci  solutionis  to  govern,  403. 

legal  and  equitable  title  to,  distinguished,  450. 

actions  on,  477,  478. 

defenses  in  actions  on,  478. 

NEW  ASSIGNMENT— 

definition  and  purpose  of,  76. 
distinguished  from  departure,  273. 

NEW  MATTER— 

defense  of,  dexinecl,  C7,  235,  384. 
dislinguishGd  from  denial,  38,  385. 
defense  of,  must  cive  color,  71,  235. 
philosophy  of  defense  of,  236,  384. 
in  excuse  or  in  discharge,  238. 
equitable  defenses  are,  239. 


INDEX.  '  68J> 


The  referencea  are  to  section*, 

NEW  MATTER  (continued)— 

defense  of,  how  pleaded,  244,  385. 
veith  denials,  in  one  defense,   65-67,  245. 
may  be  both  defense  and  counter-claim,  25ft. 
defense  of,  and  of  denial,  joinable,  262. 

NEW  TRIAL— 

office  of  and  grounds  for,  523. 

NIL  DEBIT— 

general  issue  in  debt,  93. 

NIL  DIGIT— 

judgment  by,  116,  241. 

NON  ASSUMSIT— 
general  issue,  96. 

NOIT  GEPIT— 

general  issue,  107. 

NON  CULI^ABILIS— 

general  issue,  91,  102,  104,  105. 

NON  DETINET— 

general  issue,  90^,  107. 

NON  EST  FACTUM— 
general  issue,  93. 

NON  OBSTANTE  VEREDIGTO— 

judgment  regardless  of  verdict,  84,  521. 

NON-PAYMENT— 

allegation  of,  not  anticipating  defense,  349t 

NOTICE— 

when  to  be  alleged,  109. 

when  facts  excusing,  to  be  alleged,  191. 

NUISANGES— 

right  to  abate  explained,  24,  note  1. 
annoyances  that  do  not  amount  to,  398, 

NUL  TILL  PuECORD- 

plea  of,  how  to  conclude,  Q9k 
goncrnl  issiio,  93. 
under  the  codes,  383. 

NUNC  n:0  TUNC  ENTRIES— 
nature  end  office  of,  529. 


590  INDEX. 

The  references  are  to  sections* 

0. 

OBJECTION  TO  RULING— 
nature  and  object  of,  527. 
must  be  both  objection  and  exception,  527, 

OBSCURITY— 

rules  to  prevent,  133-136. 

OPERATIVE  FACTS— 

defined  and  classified,  3,  185-187. 
distinguished  from  evidential,  185-187,  380. 
some  not  to  be  alleged,  348,  349. 

ORDER  OF  COURT— 

defined,  and  distinguished  from  judgment,  277. 

ORDER  OF  PLEADINGS— 
in  the  civil  law,  43. 
at  common  law,  55. 
in  equity,  149. 
under  the  codes,  168. 

ORDINANCES  OF  MUNICIPALITY— 

courts  of  municipality  will  take  judicial  notice  of,  840L 
in  aU  other  courts  must  be  specially  pleaded,  340. 
how  to  be  pleaded,  878. 

ORIGINAL  WRIT— 

description  and  use  of,  51. 
form  of,  52. 

OWNERSHIP— 

of  property,  how  pleaded,  325,  347. 
how  allegation  of,  traversed,  382. 

OYER— 

meaning  of,  at  common  law,  370. 

P. 

PARTIAL  DEFENSES— 
common-law  rule,  241. 
rule  under  codes,  242. 
distinguished  from  special  denial,  243. 

PARTIES  TO  ACTIONS— 

parties,  privies,  and  strangers,  449. 
necessary  and  proper,  distinguished,  458. 
must  be  named  in  the  title,  171-174. 


INDEX.  591 

Tlie  references  are  to  sections. 

PARTIES  TO  ACTIONS  (continued)— 

natural  persons,  capacity  presumed,  175. 

presumption  as  to  citizenship,  175. 

capacity  must  appear,  177-180. 

want  of  capacity,  how  asserted,  180,  296. 

new,  when  may  be  brought  in,  and  how,  256,  314. 

real  party  in  interest  to  sue,  450. 

of  parties  plaintiff,  450-452. 

of  parties  defendant,  453,  454. 

of  the  joinder  of  parties,  455-457. 

when  one  may  sue  or  defend  for  others,  458. 

cliange  of  parties  pending  suit,  459. 

modes  of  objecting  as  to  parties,  460. 

in  action  for  specific  performance,  454. 

in  foreclosure  suits,  454. 

joint  violators  of  contract  right  must  be  joined,  455. 

joint  tort-feasors  may  be  sued  jointly  or  singly,  455. 

joint  claimants  must  sue  jointly,  455, 

one  refusing  to  join  as  plaintiff,  to  be  made  defendant,  456. 

PARTITION— 

what  title  to  be  alleged  in,  324. 

PARTNERSHIP— 

how  to  sue  and  be  sued,  180. 
capacity  as  party  to  be  alleged,  180. 
how  to  be  alleged,  347. 

PAYMENT— 

defense  of,  how  pleaded,  363,  478. 

allegation  of  non-payment,  not  anticipating  defense,  349. 

when  may  be  proved  under  denial,  363. 

by  stranger,  when  a  defense,  437. 

PERFORMANCE— 

general  averment  of,  372,  373. 

how  general  averment  traversed,  373. 

when  a  prerequisite  to  remedial  right,  395. 

PETITION— 

See  Complaint. 

PHILOSOPHY— 
of  pleading,  7-39. 
of  defense  of  new  matter,  236. 

PLACE— 

when  material  to  a  right,  330. 

when  so  material,  must  be  alleged,  330.  '    . 


692  INDEX. 

The  references  are  to  sectiona, 

PLEADING— 

office  of,  7,  9,  34,  379. 

essential  idea  of,  22. 

as  a  science,  both  inductive  and  deductive,  39. 

law  of,  deals  with  operative  facts,  4. 

code  system  distinguished,  12. 

code  system,  origin  of,  159. 

PLEADINGS  IN  GENERAL— 
See  Order  of  Pleadings, 
defined,  11,  and  note  2. 
oral,  in  early  times,  54. 
origin  of  written,  55. 
in  equity,  148-158. 
all  should  be  entitled,  176,  228. 
to  be  subscribed,  228. 
to  be  verified,  224. 
frivolous,  defined,  279. 
sham,  defined,  279. 

imcertainty  in,  how  remedied,  283,  284. 
irrelevant  and  redundant  matter,  how  eliminated,  280-982. 
rules  for  construction  of,  351-354. 

to  be  constructed  with  regard  to  admission  of  evidence,  379 
necessary  to  confer  jurisdiction,  465-467. 

PLEAS— 

dilatory,  defined  and  classified,  58.  - 

in  bar,  defined  and  classified,  61.  - 

by  way  of  traverse,  62. 

in  confession  and  avoidance,  69. 

son  assault  demesne,  68. 

in  excuse  and  in  discharge,  70. 

in  avoidance,  form  of,  72. 

puis  darrein  continuance,  73. 

in  estoppel,  74. 

in  avoidance,  must  answer  whole  declaration,  75. 

joinder  of  several,  125. 

in  equity,  157. 

PILETOR— 

a  Roman  judicial  officer,  40. 

his  fimctions  and  powers,  40,  and  note  1. 

PRAYER  OF  COMPLAINT— 
office  of,  218-222. 
not  part  of  cause  of  action,  218. 
alternative  and  general,  219. 
relief  not  prayed  for,  220. 


INbtx.  593 


Th^  t^f^r^hces  are  to  sections. 

PRAYER  OF  COMPLAINT  (continued)- 
default  not  admission  as  to,  220. 
an  election  between  remedies,  221. 
not  demurrable,  222. 

PRECEDENTS— 

early  adherence  to,  47. 

not  essential  to  cause  of  action,  869. 

PRIMARY  RIGHTS— 
See  Right. 

PRIVATE  STATUTES— 
how  pleaded,  378. 

PRIVITY— 

meaning  of  term,  415. 

of  contract,  when  requisite  to  right  of  action,  416. 

when  not  so  requisite,  417. 

assignment  does  not  create,  418. 

none  in  tort,  418. 

between  landlord  and  tenant,  422. 

none  between  owner  and  wrongful  occupant,  422. 

when  complaint  must  show,  326. 

necessity  for,  gave  rise  to  fiction  of  implied  promise,  419. 

when  stranger  to  contract  may  sue  thereon,  420. 

one  can  not  be  made  debtor  by  contract  agaist  his  wiU,  421. 

PROCEDURE— 
object  of,  14. 

law  of,  defined  and  distinguished,  4. 
comparative  importance  of,  5. 
orderly  course  of,  8. 
rationale  of,  9. 
various  systems  compared,  165,  166. 

PROCESS— 

original,  mesne  and  final,  53. 
jurisdiction  by  service  of,  463. 

PROFERT— 

meaning  of,  at  common  law,  370. 

PROHIBITION— 

remedy  by  writ  of,  113. 

PROLIXITY  AND  DELAY— 
rules  to  prevent,  119. 

PROMISE— 

implied,  how  pleaded,  376,  377,  419. 
38 


594  INDEX. 

TTie  references  are  to  sections, 

PROMISSORY  NOTE— 

See  Negotiable  Instruments. 

PROPERTY,  REAL  AND  PERSONAL— 
origin  of  distinction,  87,  note  2. 
ownership  of,  how  pleaded,  325. 

PROTESTATION— 

meaning  and  office  of,  116. 

PROVISO— 

See  Exceptions  and  Provisos. 

PROXIMATE  AND  REMOTE  CAUSES— 
law  regards  only  proximate  causes,  405. 
proximate  caiises  in  breach  of  contract,  406,  407. 
where  act  complained  of  wrongful  per  se,  408. 
illustrative  cases,  408-414. 

PUBLIC  POLICY— 

place  of,  in  jurisprudence,  396. 
consideration  of,  in  pleading,  396. 

PUIS  DARREIN  CONTINUANCE— 

plea  of,  when  and  how  pleaded,  73,  74. 

PURCHASE  FOR  VALUE  WITHOUT  NOTICE— 
meaning  of,  332. 
when  to  be  alleged,  by  whom,  and  how,  333. 


QUANTUM  MERUIT— 
See  Common  Counts. 

QUANTUM  VALEBANT— 
See  Common  Counts. 

QUARE  IMPEDIT— 
action  of,  88. 

QUOD  RECUPERET— 
judgment  of,  60,  86. 

QUO  WARRANTO— 

remedy  by  writ  of,  113. 

B. 

REAL  PARTY  IN  INTEREST— 
must  be  plaintiff,  450. 
how  negatived,  343,  383,  and  note  H. 


INDEX.  51^5 

The  references  are  to  sections. 


REBUTTER— 
what  is,  78. 


RECORD  OF  FOREIGN  JUDGMENT— 
how  authenticated  and  proved,  482. 

RECOUPMENT  OF  DAMAGES— 
origin  and  meaning  of,  246. 

RECOVERY  FROM  ONE  WHERE  SEVERAL  LIABLE— 
does  not  bar  recovery  from  others,  437. 
reimbursement  by  subrogation,  437. 

REDUNDANT  MATTER— 
what  constitutes,  281. 
how  eliminated  from  pleading,  280-282. 

REFERENCE  TO  ALLEGATIONS  IN  ANOTHER  CAUSE— 
by  apt  words  of  adoption,  204. 

REFORMING  INSTRUMENTS— 
nature  of  remedy ,  509. 
action  for,  with  form  of  complaint,  509,  510. 

REFORMING  AND  ENFORCING  INSTRUMENT— 
whether  one  or  two  causes  of  action,  212-214. 

REJOINDER— 
what  is,  78. 

REGULAR  PARTS  OF  PLEADING— 
enumerated  and  explained,  168. 

RELIEF— 

See  Prayer  of  Complaint. 

several  kinds  on  one  cause  of  action,  210,  211, 

REMEDIAL  RIGHTS— 
See  Right. 

REMEDY— 

by  force — transferred  to  state,  24. 
may  be  had  where  no  actual  loss,  28. 
may  be  loss  without  remedy,  27. 

REMTrnruR  damnum— 

excessive  verdict  cured  by,  424, 

REPEATING  AN  ALLEGATION— 

avoided  by  apt  words  of  reference,  204. 

REPLEVIN— 

action  of,  106,  107,  491,  492. 


.596  INDEX, 

Hie  references  are  to  sectioi}^ 

REPLEVIN  (continued)— 
general  issue  in,  107. 
complaint  in,  492. 
judgment  in,  107. 

REPLICATION— 

when  required,  76. 
form  of,  77. 

REPLY- 

to  be  subscribed,  223. 

when  necessary,  267. 

when  not  necessary,  268,  269. 

may  contain  counter-claim  or  set-off,  270. 

to  defense  of  fraud,  271,  272. 

departure  in,  273. 

how  matter  of,  to  be  stated,  274. 

to  original  answer,  good  to  amended  answer,  274. 

REPUGNANCY— 

distinguished  from  surplusage,  138. 
ground  of  demurrer,  133. 

REPUTATION— 

right  to,  a  right  in  rem,  19. 
distinguished  from  character,  394,  note  3. 
when  defamatory  words  actionable,  394. 

RESIDENCE— 

distinguished  from  domicile,  400. 

RES  JUDICATA— 

doctrine  and  scope  of,  484. 
disparting  a  right  of  action,  443-446. 

RESPONDEAT  OUSTER— 
judgment  of,  60. 

RIGHT— 

legal,  defined  and  distingushed,  15,  16,  and  note  3« 

arises  from  facts  and  law,  21. 

constituent  factors  of,  22. 

may  be  actionable  invasion  without  loss,  28. 

primary  and  remedial,  distinguished,  22,24,33. 

composition  of  primary,  16,  and  note  8,  21. 

composition  of  remedial,  29,  32,  388. 

requisites  preliminary  to  remedial  right,  395. 

actions  simply  to  declare  a  right,  397. 

actions  to  prevent  injury  to,  398. 

remedy  concurrent  with,  13, 23. 


INDEX.  597 

The  references  are  to  sections. 

RIGHT  (continued)— 

one  limited  by  others,  17. 

private,  classification  of,  18. 

in  rem—ot  personal  security,  of  personal  liberty,  of  property,  19. 

ill  personam — arising  ex  contractu,  ex  lege,  20. 

RIGHT  OF  ACTION— 
defined,  29,  389. 

distinguished  from  cause  of  action,  31,  and  note  3. 
substantive  law  an  element  of,  33. 
one,  stated  in  several  counts,  124,  206-209, 
actual  loss,  without  remedy,  27,  390. 
remedy  without  appreciable  loss,  28,  391. 
simply  to  declare  and  establish  a  right,  397. 
to  prevent  injury  to  a  right,  398. 
against  several,  satisfaction  by  one  no  bar,  437. 
rule  for  distinguishing  separate  rights  of  action,  438. 
cases  illustrating  the  rule,  439-442. 
effect  of  disparting  single  right,  443-446. 

RIGHT,  WRIT  OF— 
early  action  of,  88. 

ROMAN  CIVIL  LAW— 

its  gradual  development,  40,  and  note  2. 

RULE  DAYS— 

meaning  of,  278,  note  1. 

s. 

SALE  OF  GOODS— 

actions  concerning,  476. 

SCIENTER— 

when  to  be  pleaded,  244. 

SCIRE  FACIAS— 

remedy  by  writ  of,  114. 

SEDUCTION— 

in  breach  of  promise,  to  be  alleged,  189. 
consent  defeats  recovery  for,  432. 
who  may  maintain  action  for,  452. 

SELF-DEFENSE— 

right  of,  explained,  24,  note  1. 

SEPARATE  STATEMENT  OF  CAUSES— 

joinder  a  privilege,  separation  a  requirement,  203> 
illustrative  cases,  199,  200,  205. 


598  INDEX. 

The  references  are  to  sections. 

SEPARATE  STATEMENT  OF  CAUSES  (continued)— 

rule  for  determining  whether  facts  require  one  or  several  state* 

ments,  438. 
cases  illustrating  this  rule,  439-442. 

SERVICES— 

actions  to  recover  for,  448,  475. 

failure  to  perform  on  account  of  sickness,  448. 

SET-OFF— 

in  eqmty,  247. 

in  code  pleading,  247,  254,  255. 

nature,  scope,  and  uses  of,  254. 

equitable  set-ofif,  255. 

how  pleaded,  260. 

may  be  asserted  in  reply,  270. 

SEVERAL  GROUNDS  FOR  SINGLE  RELIEF— 
explained  and  illustrated,  205. 

SEVERAL  INDEPENDENTLY  LIABLE— 

recovery  from  one  does  not  bar  action  against  others,  437. 
indemnity  by  subrogation  in  such  case,  4S7. 

SHAM  PLEADINGS—  ♦ 

what  are,  and  how  attacked,  279. 

SHORT  FORMS  OF  COMPLAINT— 
when  may  be  employed,  367. 
how  construed,  368. 
how  answer  adapted  to,  368. 

SIGNING  PLEADING— 
what  suflScient,  223. 
effect  of  omission,  223. 

SIMILITER- 

the  acceptance  of  issue,  62. 

required  only  when  issue  well  tendered,  62,  80, 

SINGLENESS  OF  ISSUE— 
rules  for  securing,  122-125. 

SLANDER— 

See  Libel  and  Slander. 

SPECIAL  ASSUMPSIT— 
See  Assumpsit. 

SPECIAL  DEMURRERr— 
See  Demurrer. 


INDEX.  599 

The  references  are  to  sections. 

SPECIAL  PLEAS— 

what  are  so  called,  74. 

SPECIAL  TRAVERSE— 

meaning,  form,  and  use  of,  65-67. 

under  new  procedure,  245, 

denial,  and  statute  of  limitations,  354. 

SPECIAL  VERDICT— 

distinguished  from  general  verdict,  517. 
history,  purpose,  and  effect  of,  517,  518. 

SPECIFIC  PERFORMANCE— 
action  for,  504. 

STATE  AS  PARTY— 

may  not  be  sued,  unless,  etc.,  431. 
counter-claim  may  be  asserted  against,  256,  431. 

STATEIklENT- 

the  matter  to  be  stated,  177-192. 

only  facts  to  be  stated,  184. 

the  manner  of  statement,  193-217. 

ordinary  and  concise  language,  193. 

matters  that  are  not  to  be  stated,  341-349. 

manner  of  statement,  355-378. 

facts  to  be  stated  issuably,  356,  357. 

not  confined  to  matters  of  personal  knowledge,  856. 

by  way  of  recital,  inference,  or  hypothesis,  357. 

of  facts  giving  different  version,  argumentative,  359,  364. 

STATUTE  OF  FRAUDS— 

plaintiff  need  not  allege  compliance  with,  833. 
defendant  must  allege  compliance,  333,  335. 
how  made  available  in  defense,  334,  335. 
form  for  asserting  defense  of,  335. 
critique  of  rules  concerning,  335,  note  7. 

STATUTES,  FOREIGN— 
See  Foreign  Laws. 

STATUTES,  PRIVATE— 
See  Private  Statutes. 

STATUTE  OF  LIMITATIONS— 

operates  on  remedy,  and  not  on  obligation,  336. 
when  complaint  to  allege  facts  avoiding,  191,  336. 
not  available  as  defense,  unless  asserted,  336,  337. 
may  be  asserted  by  demurrer,  295,  336. 


600 


INDEX. 


The  references  are  to  sections. 

STATUTE  OF  LIMITATIONS  (continued)— 
defense  of,  by  answer,  337. 
exceptions  in,  need  not  be  negatived,  338. 
not  available  under  denial,  337. 
except  under  denial  of  title,  382. 
limitation  as  element  of  a  right,  distinguished,  837, 
new  promise  avoiding,  337. 
may  be  controlled  by  contract,  338. 
governed  by  lex  fori,  338. 
not  generally  allowed  by  amendment,  338. 
form  of  asserting  in  answer,  338. 
denial,  and  plea  of,  in  one  defense,  354.  <;. 
confers  absolute  title  to  real  property,  383. 

STRANGER  TO  CONTRACT— 

may  sue  on,  when  for  his  benefit,  420. 
payment  by,  when  defensive,  437. 

SUBJECT  OF  THE  ACTION— 

what  is  meant  by,  181,  and  note  1. 

SUBJECT-MATTER  OF  THE  ACTION— 
what  is  meant  by,  291. 

SUBSCRIPTION  OF  PLEADINGS— 

what  sufficient  subscribing,  223. 
omission,  effect  of,  223. 

SUBSTANCE— 

See  Form  and  Substance. 

SUBSTANTIVE  LAW— 

defined  and  distinguished,  4. 

SUPPLEMENTAL  PLEADINGS— 

nature  and  purpose  of,  317. 

new  right  may  not  be  asserted  by,  817. 

what  may  be  so  pleaded,  318. 

may  be  filed  only  on  leave,  319. 

waiver  of  right  to  object  to,  318. 

SURPLUSAGE— 

does  not  vitiate  a  pleading,  133,  352. 

SURREBUTTER— 
what  is,  78. 

SURREJOINDER— 
what  is,  78. 


INDEX.  601 

The  references  are  to  sections, 
T. 

TECHNICAL  WORDS— 

to  have  technical  meaning,  352, 

TENDER  OF  PAYMENT— 
does  not  bar  action,  386. 
should  be  aflSrmatively  pleaded,  386. 

THEORY  OF  A  PLEADING— 

must  be  regarded  in  construing,  354, 
remedy  where  theory  uncertain,  354, 

TIME— 

when  material  to  a  right,  380. 
when  material,  to  be  alleged,  330. 

TITLE  OF  ACTION— 

the  court  and  the  county,  170. 
names  of  parties,  171-174. 
part  of  complaint,  175. 
not  place  for  allegations,  177. 

TITLE  TO  PROPERTY  TO  BE  PLEADED— 

complaint  must  show,  130,  323-325. 
how  pleaded,  130,  325,  347. 
derivative  title,  130,  324,  347. 
lessee  may  not  dispute  lessor's,  324. 
how  title  as  heir  to  be  pleaded,  324,  343. 
title  to  chose  in  action  by  assignment,  825. 
to  negotiable  instrmnents,  325. 

TORT— 

defined  and  distinguished,  490. 

arising  out  of  contract,  collateral  facts  to  be  alleged,  190. 

in  malpractice,  occupation  to  be  alleged,  190. 

actions  for,  490,  503. 

TRAVERSE— 

meaning  of,  62. 

conclusion  of  pleas  by  way  of,  62. 

general  traverse,  63. 

common  traverse,  64. 

special  traverse,  65-67,  245. 

traverse  de  injuria,  68. 

upon  traverse,  issue  to  be  tendered,  117. 

how  general  averment  of  performance  traversed,  3!i3, 

TRESPASS— 
defined,  100. 


602  INDEX. 

The  references  are  to  sections. 

TRESPASS  (continued)— 
action  of,  100-102. 

possession  of  plaintiff  essential,  101,  and  note  1. 
general  issue  in,  103. 
judgment  in,  102. 

TRESPASS  ON  THE  CASE— 
action  of,  103,  104. 
general  issue  in,  104. 
judgment  in,  104. 
detinue  and  trover  compared  with,  110. 

TRIAL— 

modes  of,  at  common  law,  62,  note  1. 

object  of,  379. 

its  place  in  procedure,  8. 

TROVER— 

action  of,  105. 

general  issue  in,  105. 

judgment  and  its  effect,  105. 

detinue  and  tresspass  compared  with,  llOl 

TRUSTEES— 

how  may  sue,  451. 


UNCERTAINTY— 

See  Certainty  in  Pleading. 


u. 


V. 


VALUE— 

of  services,  action  for,  448,  475. 

VARIANCE— 

meaning  and  effect  of,  379,  530. 

VENUE— 

meaning  and  origin  of,  138. 

VERDICT— 

See  Special  Verdict. 

excessive  verdict,  how  cured,  424t 

VERIFICATION— 

of  pleadings,  required,  324. 
office  and  effect  of,  325. 
omitted,  or  defective,  335. 
mode  of  objection  to,  225. 


INDEX.  e03 

77i€  references  are  to  sections. 

VroELICET— 

time,  when  not  material,  may  be  alleged  under,  880. 
material  facts  in,  may  be  traversed,  357. 

w. 

WAIVER— 
defined,  434. 

must  be  consideration  or  estoppel,  484. 
of  formal  defects,  180,  287,  288. 
of  objection  to  supplemental  pleading.  31^ 
of  one's  right  defeats  action,  434. 
when  relied  on  as  defense,  must  be  pleaded,  4SL 

WANT  OF  INFORMATION— 
denial  because  of,  364. 

WARRANTY— 

breach  of,  distinguished  from  deceit,  20Bk 

WAY,  PRIVATE— 
how  pleaded,  378. 

WILLS— 

when  governed  by  law  of  domicile,  400> 

WITHDRAWING  A  JUROR— 
practice  of,  explained,  519, 

WORDS  AND  PHRASES— 
action,  25,  and  note  8. 
alleged,  240. 
as,  177,  353,  357. 
assigned,  353. 

bona  fide  holder  for  value,  271, 
cause  of  action,  30-32,  182. 
consistent  defenses,  261-263, 
due,  343. 
due  form,  345. 
duly,  177,  345,  346,  375. 
duty,  343. 

entitled  to  possession,  343. 
entitled  to  vote,  343. 
equitable  title,  332. 
exempt  by  law,  343. 
for  value  received,  353. 
gist,  192. 

giving  color,  71,  235,  240. 
heir,  184,  343,  346. 


604  INDEX. 

The  references  are  to  sections, 

WORDS  AND  PHRASES  (continued)— 
if  any,  240. 

indebted,  184,  343,  346. 
inducement,  192. 
irreparable,  184,  334. 
ordinary  and  concise  language,  193,  351, 
real  party  in  interest,  343. 
reasonable  notice,  343. 
right  of  action,  29-33. 
rule  days,  278,  note  1. 
same  transaction,  196,  251. 
subject  of  action,  197,  258. 
subject-matter  of  action,  18I,  note,  252,  291, 
supposed,  240. 
unlawful,  184. 
wager  of  law,  95. 
wrongful,  184. 

WRITTEN  INSTRUMENTS- 
how  pleaded,  365.  366. 

WRITS— 

See  Original  Writ, 
writ  of  right,  88. 
writ  of  assize,  88. 
writ  of  dower,  88. 


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